Will the Biden Mandatory COVID-19 Vaccine Mandate Survive Court Challenge?

On Nov. 6, the US Court of Appeals for the Fifth Circuit issued an order staying, i.e., temporarily freezing, implementation of the controversial Biden vaccine mandate, citing “grave statutory and constitutional issues.” The order leaves the Occupational Safety and Health Administration (OSHA) rule requiring large employers in the private sector to implement policies compelling workers to be vaccinated against COVID-19 in a temporary state of limbo.

The OSHA Vaccine Mandate

The Fifth Circuit’s order came just one day after OSHA published its new regulations implementing the vaccinate-or-test regulation mandate that employers with at least 100 workers require all employees get the COVID-19 vaccination or submit to regular testing by Jan. 4, 2022 or face the risk of fines. Republicans have questioned the authority of the government to issue such a mandate. Government lawyers have defended the order as a legitimate exercise of OSHA’s emergency authority to issue temporary rules necessary to address a “grave danger.”

The Litigation Pushback

Republican attorneys general from nearly a dozen states have banded together to challenge the vaccine mandate in court. Petitions seeking a stay and ultimately a permanent injunction blocking enforcement of the mandate have been filed in the Fifth, Sixth, Eighth and Eleventh Circuits, each of which has a majority of Republican-appointed judges. Meanwhile, supporters of the OSHA rule are expected to file suits in Circuits with more Democrat-appointed judges.

Under federal rules, when multiple lawsuits on the same issue are filed in several circuit courts, the cases must be consolidated and heard by one court that’s chosen by a lottery. The Judicial Panel on Multidistrict Litigation manages the process. Circuit courts seeking to participate in the lottery have a 10-day window to file a petition. The Panel’s rules call for selecting the court “from a drum containing an entry for each circuit wherein a constituent petition for review is pending.” Litigants can’t sway the lottery by filing multiple petitions in the same circuit, as each circuit gets a single entry no matter how many petitions are filed there.

The Fifth Circuit Case

As of the date of this writing, the lottery hasn’t yet been held. However, circuit courts can rule on requests to halt the rule before the lottery is held. That’s the legal basis for the stay issued in the Fifth Circuit case, which was filed by a group of companies led by BST Holdings. If the Fifth Circuit doesn’t “win” the lottery, the circuit selected to hear the consolidated case will be able to lift the stay. But in the meantime, the Fifth Circuit has asked the Biden administration to respond to BST Holdings’ motion for a permanent injunction on Nov. 15.

What Happens Next?

If history is any guide, the OSHA mandate faces long odds of ever taking effect. The rule is being put forward as an “emergency temporary standard.” Unlike traditional regulations, emergency standards bypass the long rulemaking process that requires public comment and allows the agency to implement urgent six-month safety standards.

Such emergency rules are rare. OSHA is authorized to issue them only if doing so is “necessary to protect workers from grave danger.” The agency has issued nine emergency temporary standards in its 30-year history, most recently in 1983. Six of those standards were challenged in court; all but one of those cases ended up striking down the emergency order. Even so, US Department of Labor legal adviser (note: OSHA is part of the DOL), Solicitor of Labor Seema Nanda, said the department is “confident in its legal authority to issue the emergency temporary standard on vaccination and testing.”