Appeals Court Declines to Lift Stay on Federal Vaccine Mandate

NATIONAL REPORT — The federal vaccine mandate for companies with 100 or more employees remains on hold.

On Nov. 12, the U.S. Court of Appeals for the Fifth District in New Orleans declined to lift its emergency stay on the Occupational Safety and Health Administration (OHSA) emergency temporary standard (ETS) requiring employees of those companies be vaccinated by Jan. 4. Unvaccinated employees would be required to be tested for COVID-19 once a week and wear a mask.

OHSA released the rule on Nov. 4; however, the appeals court granted a temporary stay on Nov. 6, and gave the Biden Administration until Nov. 8 to reply to a motion for a permanent injunction, followed by the petitioners' reply on Nov. 9.

According to The Associated Press, lawyers for the federal Justice and Labor departments state in their response that stopping the mandate from taking effect will only prolong the COVID-19 pandemic and would "cost dozens or even hundreds of lives per day."

The appeals court rejected that argument Friday and Judge Kurt D. Engelhardt wrote that the stay "is firmly in the public interest."

"From economic uncertainty to workplace strife, the mere specter of the mandate has contributed to untold economic upheaval in recent months," Engelhardt wrote. 

The National Retail Federation (NRF) applauded the court's decision.

"We are pleased with the decision by the 5th U.S. Circuit Court of Appeals preventing the Biden Administration from doing anything to enforce the OSHA ETS unless and until an appeal is made and another court says otherwise. This is a nationwide injunction, and the court agrees that this is neither a workplace hazard nor an emergency," NRF said in a statement.

According to NRF, it has been preparing its members for the proposed mandate and took necessary legal action to protect its members from the practical challenges of implementing the rule during the holiday season.

"The companies seeking a stay in this case contend that they would have been irreparably harmed in the absence of a stay, whether by financial impacts, the loss of suspended employees during this highly competitive labor market, compliance and monitoring costs associated with the mandate, the diversion of resources, or by OSHA's plan to impose stiff financial penalties on companies that refuse to punish or test unwilling employees," NRF said. "The court recognizes that the ETS presents an incredible and unprecedented burden on millions of businesses across the country. They acknowledge the tragic loss of life and the seriousness of COVID-19, but that transmission is not inherently a workplace issue."

NACS, NRF and other trade associations filed a lawsuit against the COVID-19 vaccination and testing rule on Nov. 9 in the U.S. Court of Appeals for the Fifth Circuit.

According to another news report, the court has not ruled on the constitutionality of the requirements. However, the three-judge panel made clear that the lawsuits seeking to overturn the mandates "are likely to succeed on the merits." They criticized the requirements as "a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers)," reported CNBC.