The U.S. Court of Appeals for the Fifth Circuit issued an opinion on November 12 concluding that the Biden administration’s vaccine mandate was ‘fatally flawed.’

A three-judge panel on the Fifth Circuit Court of Appeals has blocked the Occupational Safety and Health Administration’s (OSHA’s) plan to institute a vaccine mandate for employers with at least 100 workers. While the court has not ruled on the constitutionality of the mandate, it noted that the mandate poses “serious constitutional concerns.”

The Biden administration had planned on OSHA’s authority to enact an emergency temporary standard (ETS) in its vaccine mandate.

The Fifth Circuit opinion observed that OSHA has rarely enacted ETSs and that only one of those standards had survived legal challenges in the past fifty years.

The court criticized the mandate as being “overinclusive” in the sense it did little to “account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse.”

The court also concluded that the mandate was underinclusive in that it made “no attempt to shield employees with 98 or fewer coworkers” from COVID-19.

The Biden administration criticized the court’s actions, saying the pause could “cost dozens or even hundreds of lives per day.”

COVID-19 infections in the U.S. have begun plateauing or increasing after a sustained decrease that started in mid-September.

Some 26 states are seeking to overturn the Biden administration’s vaccine mandate in five federal appellate courts in jurisdictions where the lawsuits were filed.

A lottery will serve to select a single court among those five. The court designated at random will decide the case. The lottery could take place this week, according to NPR.

Last week, the labor unions AFL-CIO, United Food and Commercial Workers and Service Employees International sued in federal appeals courts to expand Biden’s vaccine mandate. The labor unions are seeking to expand the requirements to include a greater number of businesses.

Ultimately, the case could land in the Supreme Court.