The Biden administration is likely to appeal the panel’s decision in full court.
Engelhardt was appointed to the bench by former President Donald Trump. Two other members of the panel, Judge Kyle Duncan and Judge Edith Jones, were appointed by Trump and former President Ronald Reagan, respectively.
More than a dozen lawsuits have been filed by businesses, religious organizations, and states in various appeals courts arguing that the vaccination or testing requirement exceeds OSHA’s authority and violates the First Amendment, the Commerce clause of the Constitution, and laws protecting freedom of religion.
Engelhardt acknowledged that opponents of the rules have the right to sue in his Fifth Circuit letter: “The mandate places a financial burden on them by mandating their participation in OSHA’s regulatory program, exposing them to serious financial risk if they refuse or fail to comply, and reluctant workers to shoot, take their tests, etc. or threaten to destroy their workforce (and job prospects) by forcing them to leave.”
Among other arguments, Engelhardt agreed with his arguments that the requirement exceeded OSHA’s mandate to inspect workplaces and the federal government’s mandate under the Commerce Clause.
The vaccine or test requirement was implemented as an emergency provisional standard. OSHA may issue such standards if it determines that “workers are exposed to serious hazard from exposure to substances or agents determined to be toxic or physically harmful, or from new hazards” and that the rule is “necessary” to protect workers from that hazard.
The administration told the court earlier this week that OSHA was acting within its jurisdiction and that suspending the requirement “probably would cost dozens or even hundreds of lives a day.”
It remains unclear whether the legality of the rule will ultimately be dealt with by the Fifth Chamber or by another chamber. As multiple lawsuits were filed in various appellate courts, a lottery was triggered to determine which circuit would hear the appeal. The draw is scheduled for next week.