Fifth Circuit issues ‘full stay’ of employer vaccine mandate; cites public interest, maintaining individual liberty

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November 15, 2021

The Fifth Circuit Court of Appeals has issued a “full stay” of the Biden administration’s Emergency Temporary Standard mandating that companies with 100 or more employees require their employees be vaccinated or receive weekly Covid-19 testing by Jan. 4. The stay will be in place while the case goes through the legal process. It follows a temporary stay issued on Nov. 8.

“The court recognizes that the ETS presents an incredible and unprecedented burden on millions of businesses across the country,” the National Retail Federation said in a statement. “They acknowledge the tragic loss of life and the seriousness of Covid-19, but that transmission is not inherently a workplace issue.”

In its opinion, the Fifth Circuit said the standard is “staggeringly overbroad.”

“From economic uncertainty to workplace strife, the mere specter of the mandate has contributed to untold economic upheaval in recent months,” according to the court’s decision.

“Of course, the principles at stake when it comes to the Mandate are not reducible to dollars and cents,” it said. “The public interest is also served by maintaining our constitutional structure and maintaining the liberty of individuals to make intensely personal decisions according to their own convictions — even, or perhaps particularly, when those decisions frustrate government officials.”

NPR reported that a lottery is expected to be held this week to determine which federal Appeals Court will hear the case when the different suits over the mandate are combined.

A note by law firm Littler Mendelson said the emergency temporary standard is barred from being enforced during the stay.

Case No. 21-60845

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