The US Fifth Circuit Court of Appeals Friday upheld its November 6 decision to temporarily stop the Biden administration’s vaccine mandate for private businesses. The mandate, known as the Emergency Temporary Standard (ETS) on Vaccination and Testing was published last Saturday by the Occupational Safety and Health Administration (OSHA).

The ETS challenge was filed by the Attorneys General for Louisiana, Mississippi, South Carolina, Texas and Utah. The court noted that a permanent injunction for the vaccine mandate is likely because the law’s applicability is simultaneously overinclusive and underinclusive, as it only applied to workplaces with 99 or more employees. The court also noted that the mandate as a whole raises constitutional concerns, as it is likely that OSHA has exceeded its statutory authority. The three-judge court has described the mandate as a “one-size-fits-all sledgehammer” blanket enforcement on different kinds of workplaces.

OSHA is able to overlook administrative requirements to enforce workplace safety and health standards in situations that reach a “grave danger” standard. However, the Fifth Circuit was unconvinced that the virus, causing a nearly two-year-long global pandemic, has reached the emergency authority threshold for “grave danger” despite having caused more than 750,000 deaths in the US. They further argued that OSHA already has the current executive tools to deal with COVID-19 and should not resort to a sweeping emergency safety mechanism.

The mandate faces several challenges from both the left and the right. Conservative states argue that the mandate is an overreach of government, while liberal groups and labor unions claim the mandate does not go far enough to protect employees in workplaces that do not fall within the mandate’s parameters. All of these petitions to the OSHA guidelines must be consolidated in a single case, so a multi-circuit lottery will be held on November 16 to decide the venue.

Georgetown Law Professor David Vladeck said it is likely the case will reach the conservative majority Supreme Court.