A number of the largest labor unions in the United States are mounting legal challenges against President Joe Biden’s vaccination mandate and testing requirements to have the regulations expanded to smaller businesses.

It’s another legal challenge in the mounting legal entanglements the administration is facing over the mandate, which currently requires workers at companies with 100 or more employees in the United States to be fully vaccinated against COVID-19 by Jan. 4, 2022, or submit to weekly coronavirus tests to confirm they don’t have the virus.

Under the rules, which stand to impact larger firms in the promotional products industry, unvaccinated workers must begin wearing masks indoors on the job starting Dec. 5, according to the administration’s regulations.

Still, some labor leaders think the vaccination and testing rules don’t go far enough to protect workers.  

For instance, the United Food and Commercial Workers International Union (UFCW), the largest meatpacking and food processing union, wants the vaccination mandate and testing requirement to cover as many businesses as possible, including small firms with fewer than 100 employees. The union powerhouse also wants the administration to set in stone that workers will not have to pay for the required COVID testing and face masks.

The UFCW was joined by the AFL-CIO, the largest federation of trade unions in the U.S., in asking the U.S. Court of Appeals for the District of Columbia to review the federal requirements. Meanwhile, the Service Employees International Union, whose local 32BJ primarily represents building security guards and cleaners in the Northeast, Florida and D.C. areas, challenged Biden’s mandate in the U.S. Court of Appeals for the Second Circuit.

Top union @UFCW leads push to strengthen worker safety and protections in Biden #VaccineMandate and #OSHA rule#Vaccine policies must be negotiated with workers and guarantee free access to masks and testing as #COVID continues

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— Abraham White (@abwhite7) November 15, 2021

That union says Biden’s regulations for larger employees fail “to adequately protect all workers who face a grave danger from COVID-19 exposure in the workplace.” The union wants vaccination and testing requirements expanded to all businesses of every size.

“We believe that we all have to do our part to help our communities return to normal and that the COVID vaccine or test mandate should be broader in scope to also apply to employers with fewer than 100 employees,” Kyle Bragg, president of SEIU 32BJ, told CNBC. “An exemption for these employers undermines the effort to protect public health.”

The Occupational Safety and Health Administration (OSHA) is charged with enforcing Biden’s mandate.

The agency, which is part of the U.S. Labor Department, has already suggested it could consider expanding the mandate to businesses with fewer than 100 employees, as well as potentially adding more COVID-related workplace requirements as part of what it says is an effort to keep workers safe. OSHA is currently holding a public comment period during which it’s looking for feedback from companies on the topics. This includes seeking input from businesses with fewer than 100 employees that already have their own internal vaccination and testing requirements.

OSHA has previously said that applying the federal testing and vaccination mandate to companies with 100 or more employees made sense because it believed such firms had the ability to successfully implement the rules.

Fifth Circuit Affirms Temporary Block of Biden Mandate

As the unions press for an expansion of the federal mandate, Republican attorneys general in at least 26 states are suing for the opposite – namely, to have the vaccination and testing requirements abolished. The cases are expected to be consolidated into a single court – something that could happen as early as this week.

Those that oppose the mandate scored a preliminary win on Friday, Nov. 12, when the U.S. Court of Appeals for the Fifth Circuit reaffirmed its earlier decision to halt the implementation of Biden’s mandate.

The court stated that the mandate for larger employees is “fatally flawed,” “staggeringly overbroad,” and that lawsuits challenging the requirements are “likely to succeed on the merits.” The mandate is a “one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces…”

The Fifth Circuit, considered one of the most conservative courts in the country, made the ruling in response to legal filings made by Republican attorneys general in Texas, Louisiana, Mississippi, South Carolina and Utah, along with some private companies. The court has not yet ruled on whether or not the mandate is constitutional, but has said the federal rules raise “grave statutory and constitutional issues.” 

Surgeon General Vivek Murthy said it would be a “setback for public health” if the mandate were rubbished by the courts.

“What we know very clearly is that when people get vaccinated – and the more people who get vaccinated the quicker we’re able to bring this pandemic to an end — the more lives that we can ultimately save,” Murthy said in an interview with Fox News.

U.S. Surgeon General Vivek Murthy

Despite court battles on multiple fronts, the Biden administration has told businesses with 100 or more employees to conform with the vaccination and testing requirements by the Dec. 5 and Jan. 4 deadlines.

Biden says he has issued the rules in the interest of public health. The president’s administration estimates that the requirement will save thousands of lives and prevent more than 250,000 hospitalizations over the six months following its implementation.

OSHA is planning on-site inspections of workplaces to ensure that companies are conforming to the mandate. Penalties for violations can range from $13,653 for a serious offense to $136,532 for a company that willfully flouts the rules.

Officials within the Biden administration have asserted what they call a “standard,” rather than a mandate, is on solid legal ground and will withstand any court challenge, once fully adjudicated.

“The Occupational Safety and Health Act explicitly gives OSHA the authority to act quickly in an emergency where the agency finds that workers are subjected to a grave danger and a new standard is necessary to protect them,” Seema Nanda, top legal adviser to the U.S. Labor Department, has said in a statement.