FederalJudicialFifth Circuit Orders Stay on Federal Vaccine Mandate for Businesses

The appellate court ordered a stay on the Biden administration’s requirement for businesses to mandate COVID-19 vaccinations or testing.
November 8, 2021
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After receiving petitions from a litany of private organizations and states such as Texas and Louisiana, the U.S. Fifth Circuit Court of Appeals issued a stay on the requirement for businesses with 100 or more employees to mandate COVID-19 vaccinations or weekly testing by January 4, 2022.

“Because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby STAYED pending further action by this court,” wrote Reagan-appointed Circuit Judge Edith Jones along with Trump-appointed Judges Kyle Duncan, and Kurt Engelhardt.

The judges gave the federal government until 5:00 PM on Monday, November 8 to respond, and ordered petitioners to file any reply by 5:00 PM on Tuesday, November 9.

On Sunday, the main states involved in the lawsuit at the Fifth Circuit — Texas, Mississippi, Louisiana, South Carolina, and Utah — as well as several businesses including one represented by attorneys at the Texas Public Policy Foundation, filed a detailed motion arguing in favor of a stay on the Biden administration’s rule under the Occupational Safety and Health Administration (OSHA).

The OSHA’s new rule, issued as an Emergency Temporary Standard (ETS), would directly reach two-thirds of the nation’s workforce, according to the agency.

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Petitioners argue that the sweeping regulation would lead to detrimental effects for private and public entities across the nation.

For instance, Vincent DeVito, the president of Cox Operating, LLC, an oil and gas exploration and production company, says that about half of his company’s employees have not received a vaccination and would refuse to comply with the mandate.

“Many of our employees are long-term and do not flight from one company to another. Needlessly displacing our workers would harm families and communities and likely negatively impact vendor supply chains throughout the working coasts,” swore DeVito in an affidavit attached to the petition.

“[T]he Vaccine Mandate will also likely lead to decreased domestic energy production,” said DeVito. “Losing a significant number of workers will make it increasingly difficult to timely deliver critical services to the nation.”

The motion contained 10 other similar declarations from public and private employees who emphasized that the regulation could have harmful effects such as understaffed medical facilities, surging taxpayer-funded costs for unemployment and Medicaid, and an exacerbation of current staffing shortages.

The petitioners called the new OSHA rule “the latest attempt by the Biden Administration to leverage the COVID-19 pandemic into a justification to reconfigure massive sectors of the American economy.”

“In doing so the Administration has flouted the Constitution, the limits of its statutory authority, and the foundational principles of administrative law. But the vaccine mandate at issue here is even more remarkable: although the Biden Administration has expressly recognized that it lacks power to take this action, it has pressed forward anyway on a self-confessed pretextual basis,” they wrote.

“President Biden wanted to increase vaccinations and ordered OSHA to create a novel ‘work-around’ of federal law. It did so. Its lengthy preamble is just window-dressing to obscure that fact.”

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Daniel Friend

Daniel Friend is a reporter for The Texan. He participated in a Great Books program at Azusa Pacific University and graduated in 2019 with a degree in Political Science. He has studied C.S. Lewis’s science fiction trilogy and in his spare time you might find him writing his own novel partly inspired by the series.