Government Responds to 5th Circuit Court Block of Vaccine Mandate

November 9, 2021

On Monday, Nov. 8, 2021, the Biden administration filed its response to the New Orleans-based 5th Circuit Court of Appeals decision to block OSHA’s much anticipated COVID vaccine rule for private sector employers. In its short, two-page order, the 5th Circuit Court of Appeals stated that the petitions requesting injunctive relief  “give cause to believe there are grave statutory and constitutional issues” with the rule. The court temporarily stayed the rule while the legal challenges play out.

Government Argues OSHA Has Clear Authority to Issue Vaccine Mandate

In its response to the stay, the government cited concerns of safety and warned that this temporary stay of the rule “would endanger many thousands of people” and “would likely cost dozens or even hundreds of lives per day.” The government asserted that there is clear authority for OSHA to issue such a rule and argued that “with the reopening of workplaces and the emergency of the highly transmissible Delta variant, the threat of workers is ongoing and overwhelming.”

Dozens of States, Businesses and Organizations Have Sued Over Vaccine Mandate

The rule, which took effect Friday and was subsequently blocked by the 5th Circuit Court of Appeals on Saturday, requires private sector companies and businesses with 100 or more employees to ensure that their employees are vaccinated against COVID or tested weekly by Jan. 4, 2022. Since the rule took effect, at least 27 states, including Ohio, as well as businesses, trade groups and organizations have filed suit, calling the rule an overreach of governmental authority and unconstitutional on various grounds.

Vaccine Mandate Legal Challenges: What’s Next?

Pursuant to federal law, because the challenges to the rule span multiple federal circuit courts, including the 5th, 6th, 7th, 8th, 11th and DC circuit at this time, the cases must be consolidated and heard in one venue by one federal appeals court, chosen by a lottery. The lottery to decide which federal appeals court hears the consolidated case could happen as soon as Nov. 16, 2021. This stay of the rule issued by the 5th Circuit Court of Appeals was outside of the required lottery. The government has additionally argued that the court’s action is premature.

In addition, it remains unclear whether this temporary stay applies nationwide. At this point, it is presumed to have nationwide effect, but there is no explicit statement in the 5th Circuit Court’s order. Other states that have challenged the rule are now seeking clarification. For example, Missouri has asked the St. Louis-based 8th Circuit Court of Appeals to enter a similar order “to avoid any confusion and secure full protection of rights.” Alabama, Florida and Georgia also requested a stay Monday in the Atlanta-based 11th Circuit Court of Appeals, arguing that the order from the 5th Circuit remains “temporary.”

KJK is closely monitoring these developments and will continue to provide updates. If you have question or would like to discuss further, please reach out to Labor & Employment Chair Rob Gilmore (rsg@kjk.com; 216.736.7240) or attorney Kirsten Mooney (kmb@kjk.com; 216.736.7239).