- The Washington Times - Saturday, November 13, 2021

The 5th U.S. Circuit Court of Appeals Friday kept in place its stay on the Biden administration’s push to require COVID-19 vaccinations for employees at businesses with 100 or more workers effective Jan. 4 of next year, saying it found “a multitude of reasons” to believe a legal challenge is “likely to succeed on the merits.”

A three-judge panel of Judges Kurt D. Engelhardt, Edith Jones, and Stuart Kyle Duncan said the Occupational Safety and Health Administration’s Nov. 5 Emergency Temporary Standard, or ETS, had the potential to cripple the businesses to which the measure applied.

Last Saturday, the three Republican-appointed judges issued a temporary stay which the Labor and Justice departments opposed saying a block would prolong the pandemic and “cost dozens or even hundreds of lives per day,” the Associated Press reported. The administration also wanted the legal challenges in at least six federal appeals courts to be consolidated into one circuit court case with the jurisdiction chosen at random on Nov. 16, the news agency said.

The ETS — a measure never previously applied to a vaccine in OSHA’s 50-year history, the 5th Circuit opinion noted — would require workers to be vaccinated or face weekly COVID-19 testing and a mask-wearing requirement at work. A sharply worded 22-page opinion stated the November mandate “grossly exceeds OSHA’s statutory authority.”

Writing for the panel, Judge Engelhardt, a 2018 Trump appointee, blasted the ETS’s broad sweep: “[R]ather than a delicately handled scalpel, the Mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly ‘grave danger’ the Mandate purports to address.”



The vaccination mandate drew a raft of legal challenges across the nation, including a number of religious organizations and Christian employers, who argued implementing the steps would compel them to invade worker’s medical decisions and track these choices.

“As religious ministries, our clients cannot in good conscience force their own employees to violate their deeply held beliefs regarding vaccines,” said David Hacker, litigation director at the public-interest group First Liberty Institute which represented two of the plaintiffs seeking 5th Circuit relief at the time of their challenge. Those plaintiffs are Daystar Television Network and the American Family Association, both located within the circuit court’s three-state jurisdiction.

The OSHA mandate “threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road,” Judge Engelhardt wrote. Both individuals and companies forced to obey the mandate would each be “irreparably harmed in the absence of a stay,” while OSHA would suffer “no harm whatsoever” while the matter is litigated further.

He asserted the Occupational Safety and Health Act of 1970 “was not … intended to authorize a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways.”

First Liberty Institute president Kelly Shackelford said his group would press federal courts to end the mandate altogether.

“We are thrilled that the Fifth Circuit has stopped this mandate for now. We remain dedicated to ending it permanently,” Mr. Shackelford said in a statement. “The President is supposed to protect people of faith, not conscript private employers into his ideological war.”

The Labor Department did not issue an immediate reaction to the Nov. 12 ruling. Earlier, Labor solicitor Seema Nanda asserted the agency’s position in a statement.

“The U.S. Department of Labor is confident in its legal authority to issue the emergency temporary standard on vaccination and testing,” Ms. Nanda said. “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. … We are fully prepared to defend this standard in court.”

The Washington Times has contacted the Labor Department and the White House requesting comment on the latest ruling from the 5th Circuit.

This article is based in part on wire service reports.

• Mark A. Kellner can be reached at mkellner@washingtontimes.com.

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