The Biden administration will likely appeal to the full court against the decision of the panel.
Former President Donald Trump appointed Engelhardt to the bench. Trump appointed Judge Kyle Duncan and Judge Edith Jones to the panel.
Businesses, religious organisations, and states have filed more than a dozen lawsuits in appeals courts arguing that OSHA's vaccine-or-test requirement is beyond their authority and violates the First Amendment, Constitution's Commerce clause, and laws protecting religious liberty.
Engelhardt acknowledged that the opponents of the rules had standing to sue in Fifth Circuit. He wrote that: "The Mandate places a financial burden upon them through deputizing them in OSHA’s regulatory scheme. This exposes them to severe risk if it is not followed. It threatens to decimate their workforces and business prospects by forcing unwilling workers to take their shots, pass their tests or take the road.
Engelhardt also agreed to their claim that the requirement is beyond OSHA's ability to police workplaces, and the federal government’s authority under the Commerce Clause.
As an emergency measure, the vaccine-or-test rule was created. OSHA can issue such standards when it finds that employees are in grave danger of being exposed to agents or substances that have been determined to be toxic, physically harmful, or new hazards. The rule must be "necessary" for workers to avoid that danger.
This week, the administration informed the court that OSHA had acted within their authority and that a stay would likely result in dozens to even hundreds of deaths per day.
It is not clear whether the Fifth Circuit will finally decide the legality or another circuit. Multiple lawsuits were filed in different appeals courts. A lottery was set up to determine which circuit will hear this challenge. Next week is the scheduled date for the lottery.
