A federal appeals court late Friday upheld its stay of the Biden administration’s vaccine mandate for larger businesses, saying it leaves workers with a choice between “their jobs and their jabs.”

The 5th Circuit Court of Appeals put the Occupational Safety and Hazards Administration rule requiring employers with 100 or more employees to ensure their workers are fully vaccinated against COVID-19 or tests negative for the coronavirus at least once a week on hold pending a decision on a permanent injunction.

The judges barred OSHA from taking steps to implement or enforce the mandate until a further court order.

In a scathing opinion, the court found that OSHA’s emergency temporary standard issued earlier this month raises “serious constitutional concern.” The rule runs afoul of the law from which OSHA draws its power and likely violates constitutional freedoms, the judges wrote.

The mandate threatens to “substantially burden the liberty interests of reluctant individual recipients put to a choice between their job(s) and their jab(s),” according to the court.

“On the dubious assumption that the mandate does pass constitutional muster — which we need not decide today — it is nonetheless fatally flawed on its own terms,” the judges wrote.

Texas, Louisiana, Mississippi, South Carolina, Utah and businesses and religious organizations in some of those states sued the Department of Labor and OSHA over the vaccination rule. They argue the rule is unconstitutional and President Joe Biden, wanting to increase vaccinations, ordered OSHA to create a “novel work-around” of federal law.

The 5th Circuit Court, one of the most conservative in the country, issued an emergency stay last Friday, a day after the lawsuit was filed.

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“In the mine run of cases — a transportation department regulating trucking on an interstate highway, or an aviation agency regulating an airplane lavatory — this is generally well and good. But health agencies do not make housing policy, and occupational safety administrations do not make health policy,” according to the court.

The court found that Texas made a “compelling” argument in its brief that an airborne virus is beyond the purview of an OSHA emergency standard.

“Litigation will continue, but this is a massive victory for Texas & FREEDOM from Biden’s tyranny & lawlessness,” Texas Attorney General Ken Paxton tweeted.

Government lawyers opposed the 5th Circuit Court putting the rule on hold, contending in court documents it would lead to numerous deaths.

In its court filing, the government argued the states’ asserted injuries are “speculative and remote” and do not outweigh the interest in protecting employees from a dangerous virus while the lawsuit proceeds. 

“Nor have petitioners shown that their claimed injuries outweigh the harm of staying a standard that will save thousands of lives and prevent hundreds of thousands of hospitalizations,” according to court documents. “OSHA’s detailed analysis of the standard’s impact shows that a stay would likely cost dozens or even hundreds of lives per day.”

The court decision described the mandate as a “one-size-fits-all sledgehammer” that makes little attempt to account for differences in workplaces  and workers. The rule fails to consider COVID-19 is more dangerous to some employees than to others.

“All else equal, a 28-year-old trucker spending the bulk of his workday in the solitude of his cab is simply less vulnerable to COVID-19 than a 62-year-old prison janitor,” according to the court.

The court also found the mandate to be “underinclusive.”

“The most vulnerable worker in America draws no protection from the mandate if his company employs 99 workers or fewer,” the judges wrote. 

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The judges found a stay would do no harm to OSHA. Any interest the agency may claim in enforcing an “unlawful and likely unconstitutional” rule is illegitimate, according to the court. The court found putting the mandate on hold is in the public interest.

“From economic uncertainty to workplace strife, the mere specter of the mandate has contributed to untold economic upheaval in recent months. Of course, the principles at stake when it comes to the mandate are not reducible to dollars and cents,” the judges wrote.

“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.”

In its brief, Texas makes a compelling argument that § 655(c)(1)’s neighboring phrases “substances or agents” and “toxic or physically harmful” place an airborne virus beyond the purview of an OSHA ETS in the first place.  

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