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Biden’s Workplace Vaccine-or-Test Rule Halted by Fifth Circuit

Nov. 6, 2021, 7:15 PM

A federal appeals court in New Orleans suspended the Biden administration’s emergency temporary rule requiring employers to mandate Covid-19 vaccination or regular testing.

Citing “grave statutory and constitutional issues,” the U.S. Court of Appeals for the Fifth Circuit put the newly minted workplace mandate rule on hold Saturday pending further litigation.

The order comes a day after the Occupational Safety and Health Administration officially published its vaccinate-or-test regulation, which was met by a flurry of lawsuits from Republican state attorneys general, companies, and other organizations seeking to block it. The emergency temporary standard is supposed to last just six months, heightening the significance of any delay before the rule gets full judicial review.

The three-judge Fifth Circuit panel that halted the regulation is composed of Judges Kyle Duncan and Kurt Engelhardt, who were both appointed by the Trump administration, and Judge Edith Jones, a Reagan administration appointee.

A group of companies led by BST Holdings sought the stay in the Fifth Circuit, where they filed suit on Friday seeking to have the measure voided. Challengers have similarly filed motions asking for the rule to be paused in other circuit courts.

VIDEO: President Biden’s vaccine mandate rule for companies, the likely legal challenges and what to expect next.

With multiple lawsuits against the OSHA regulation filed in several circuit courts, federal rules for mulit-circuit litigation call for the cases to be consolidated and heard by one court that’s initially chosen by a lottery.

But the circuit courts can rule on requests to halt the rule before the lottery is held, as demonstrated by the Fifth Circuit. Such stays can be lifted by the court that’s randomly selected to hear the consolidated case.

The Fifth Circuit asked the Biden administration to respond to BST Holdings’ motion for a permanent injunction on Monday.

The case is BST Holdings v. OSHA, 5th Cir., No. 21-60845, stay granted 11/6/21.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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