Pending further court decisions, the injunction effectively prevents the Occupational Safety and Health Administration (OSHA) from going ahead with preparations to implement the new rules that would require all private sector companies employing more than 100 people to assure that all staff are vaccinated by Jan. 4, 2022. Alternatively, unvaccinated employees would have to undergo weekly testing. All would be obliged to wear masks in the workplace.

Separately, the Biden administration has mandated Covid-19 vaccinations for all federal workers and contractors or it at least will require the unvaccinated to undergo regular resting for Covid-19. An earlier option for unvaccinated workers to be regularly tested instead has been eliminated. Here, the president will face no legal challenges, as the federal government can make its own rules.

The three-judge panel of the 5^th District Court of Appeals in New Orleans, Louisiana, regarded as one of the most conservative in the country – all three judges on the panel were appointed by Republican presidents –  did not say whether it thought the executive order was constitutional or not, but said it  raised “serious constitutional concerns.” 

Additionally, the panel said, the mandate is “fatally flawed” because it doesn’t account for the different risks faced by a security guard on night duty and a meatpacker in a cramped warehouse, for example. It also “makes no attempt” to protect employees with 98 or fewer coworkers from being infected by Covid-19.

Petitions challenging the mandate reportedly have been submitted by the Republican attorneys generals Louisiana, Mississippi, South Carolina, Texas and Utah. Some of the conservative states said statutory and constitutional issues regarding the mandate had been raised by business owners. In a reverse case, three labor unions together have sued to expand the mandate to all companies, regardless of the size of the workforce.

Altogether 26 states are said to be seeking to overturn the vaccine mandate in five federal appellate courts. Current plans call for these challenges to be heard by a single court. A lottery will decide which jurisdiction it falls to, potentially this week.  The outcome could vary according to the jurisdiction picked. If the decision falls to the 5^th circuit, the mandate is sure to fall, commentators said.

Criticizing the injunction issued by the New Orleans judges only four days after the provisions of the mandate were published, the Biden administration said the move could cost “dozens or even hundreds of lives per day.” OSHA has calculated that the mandate would prevent more than 6,500 deaths and 250,000 hospitalizations.

Lawrence Gostin, professor of global health law at Georgetown University Law Centre in Washington, DC, director of the World Health Organization’s Collaborating Center on Public Health Law & Human Rights and author of a book on global health security, tweeted that the delay “will be detrimental in a health crisis.” Unelected judges with no scientific experience shouldn’t be second-guessing health and safety professionals at OSHA, Gostin said, noting that the Occupational Health and Safety Act of 1970 gives the president “clear and explicit power to set reasonable, scientifically based standards for workplace safety.”

Some think the challenges to the mandate could land in the already overwhelmed US Supreme Court, which in its current session faces a number of important decisions, including a test of state abortion laws. Here, the mandate could be equally likely to fall, in view of the court’s new conservative majority. Former president Donald Trump named three judges to the bench of the nation’s highest court.

Ironically, the New Orleans panel that stayed implementation of the new OSHA rule is the same panel that allowed Texas's strict anti-abortion law to stand this past September.

Author: Dede Williams, Freelance Journalist