And just like that, a federal appellate court has stayed the Biden vax-or-test mandate for now


fast by Alice Design from the Noun Project

Damn! That was fast!

I think I was on page 423 of the 490-page COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), preparing for that free Zoom that I’m hosting on Friday (details below). That’s when I heard the news on Saturday that the Fifth Circuit Court of Appeals had stayed the mandate.

You can read a copy of the order here. There’s not much to it: two pages, of which the first is all case caption. The appellate court entered the stay out of concern over “grave statutory and constitutional issues with the Mandate.”

But why?

Well, for that, you need the read the brief that the petitioners filed. Or don’t because it’s over 60 pages, and who has time for that? Besides, I read it yesterday, and I’ll summarize it for you below.

The petitioners are businesses and employees who claim that the Biden mandate is unlawful for several reasons. First, they claim that the ETS exceeds the authority that Congress gave OSHA:

The OSHA authorizing statute does not grant the Secretary of Labor (the “Secretary”) the power to issue a COVID-19 vaccine mandate. In order to be lawful, an ETS must address a workplace-specific safety issue, address a grave danger, be necessary to protect workers, and address a toxic or physically harmful substance, agent, or new hazard.

The ETS fails on all four counts. First, the ETS addresses a societywide health concern, not a work-place specific hazard. Second, even assuming that COVID-19 mitigation remains a compelling interest…that does not automatically qualify it as a “grave danger” as the Occupational Safety and Health Act uses that term. The Administration’s failure to act expeditiously on the ETS proves that it is not, in fact, a grave danger. Third, the ETS is also not necessary—there are many other tools for combatting COVID-19, and just months ago OSHA examined the same facts and determined that a vaccine mandate was not necessary even for healthcare workers. Moreover, the ETS addresses an infection disease, not a toxic substance or workplace hazard. Finally, general principles of statutory interpretation support Petitioners’ reading of the OSHA statute.

The petitioners also believe that the mandate is unconstitutional:

In the alternative, if the ETS is allowed under the OSHA authorizing statute, then that statute exceeds the powers of Congress under the Interstate Commerce Clause. Imposing a vaccine mandate on employers with more than 100 employees exceeds the limits of congressional power to regulate interstate commerce because there is no finding that all such companies engage in interstate commerce. Such a widespread regulation of nonecomic activity is not allowed under the auspices of the Commerce Clause.

Or if it is found that the Secretary does have the power to issue the ETS under the OSHA authorizing statute, then such administrative power violates the nondelegation doctrine. Congress cannot delegate to an administrative official the broad ability to make law by utilizing a new, unforeseen statutory power to issue an emergency rule which has only a tangential connection to workplace safety. In this instance, the Secretary has failed to follow an intelligible principle from Congress.

While the Fifth Circuit has entered a stay, it’s only temporary. The government will get to argue its side in a brief today, and there will be oral argument tomorrow, after which the Fifth Circuit will rule whether to extend the temporary stay.

In the meantime, it makes sense to continue to prepare as if this ETS will come to fruition. And to help you do that, I’ve assembled a group of fantastic employment lawyers to join me on Friday, November 12, 2021 at Noon ET to discuss the details of the ETS. If that sounds good to you, please join me and my partners Amy Epstein GluckDavid RennerSid SteinbergGordon Berger, as we answer all of your questions in a way that doesn’t involve giving any actual legal advice or creating an attorney-client relationship.

You can register here (

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