- The Washington Times - Saturday, November 6, 2021

Siding with religious organizations and other private employers, the United States Court of Appeals for the Fifth Circuit Saturday blocked implementation of the Biden Administration’s OSHA mandate requiring vaccinations or regular testing at firms with 100 or more workers.

The temporary order, to be reviewed Monday, applies to the states of Texas, Louisiana, and Mississippi.

“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,” the order from Fifth Circuit Judges Edith Jones, Stuart Kyle Duncan, and Kurt D. Engelhardt stated.



Judge Jones was a Reagan appointee to the Fifth Circuit, while Judges Engelhardt and Duncan were nominated in January 2018 by President Donald Trump.

The temporary injunction comes in response to motions filed Friday for permanent blocking of the employer vaccine mandate.

Last Thursday, the Occupational Safety and Health Administration issued an emergency temporary standard requiring all private businesses with 100 or more employees to ensure that every employee is vaccinated against the COVID-19 by Dec. 4, although implementation was pushed back to Jan. 4. Workers who are not vaccinated must wear a mask and get weekly testing for the virus.

The move drew immediate fire from private employers within the Fifth Circuit’s jurisdiction, including religious organizations represented by public-interest law firm First Liberty Institute: Daystar Television Network and American Family Association. 

A third client, Answers in Genesis, sought relief in the Sixth Circuit, where Christian clients of another public-interest legal group, Alliance Defending Freedom, also sought relief. Those clients included the Southern Baptist Theological Seminary and Asbury Theological Seminary, both in Kentucky, and the Christian Employers Association, a trade group whose president said dozens of its members met the 100-employee threshold.

“We don’t live in a dictatorship where a President can issue an edict and take over all of the large companies in our nation and the lives of over 84 million Americans,” said Kelly Shackelford, First Liberty’s president, CEO and chief counsel, in a statement.  “The mandate is massively unconstitutional and violates statutory law as well.  We’re pleased that the Fifth Circuit has stopped it from being implemented.”

Both sides in the Fifth Circuit case were ordered to file responses to the temporary stay by 5 p.m. Monday.

On Friday, Seema Nanda, Labor Department Solicitor, said in a statement, “This ETS preempts any state or local requirements that ban or limit an employer’s authority to require vaccination, face-covering, or testing. [It] is well within OSHA‘s authority under the law and is consistent with OSHA‘s requirements to protect the health and safety of workers. We are fully prepared to defend this standard in court.”

A Labor Department spokesperson on Saturday told The Washington Times its response to the Fifth Circuit’s Saturday ruling was unchanged from their Friday statement.

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

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