Stay on OSHA’s ETS affirmed; agency ordered to ‘take no steps to implement or enforce’ vaccine mandate

By Brandi O. Brown, J.D.

Less than one week after issuing an initial stay halting OSHA’s vaccinate or test ETS, the Fifth Circuit reaffirmed that decision and ordered OSHA to take no steps to implement or enforce the mandate until further court order. The court found that the petitioners’ challenges to the mandate were likely to succeed on the merits, determining that the mandate, even if it passed constitutional muster, was the “rare government pronouncement” that was both underinclusive and overinclusive. The court also found it unclear that COVID-19 posed the kind of grave danger required for an ETS and that the mandate raised “serious constitutional concerns.” Judge Duncan wrote a separate concurrence (BST Holdings, LLC v. OSHA, November 12, 2021, Engelhardt, K.).

Initial order. On November 5, OSHA promulgated a much anticipated vaccine mandate in an interim rule. On November 6, the Fifth Circuit, finding “cause to believe there are grave statutory and constitutional issues with the Mandate,” issued an initial, temporary stay, halting OSHA’s interim rule. The rule established an emergency temporary standard (ETS) requiring either COVID-19 vaccination or weekly testing and mask wearing for private employers with at least 100 employees (see Businesses, five states obtain temporary stay of Biden Administration’s private employer vaccine mandate, November 8, 2021).

In a November 8 letter, the Justice Department apprised the court that a dozen petitions to review the same ETS have been filed in multiple circuits and that it expected a multi-circuit lottery to take place mid-month. Essentially, it asked the court to slow down, noting that the petitioners asserted little prospect of harm until early December.

Re-issued stay. Nevertheless, on November 12, the appeals court issued this decision granting the petitioners’ motion for a stay pending review, staying enforcement of the OSHA ETS pending “adequate judicial review” of their motions for a permanent injunction, and ordering OSHA to take no steps to implement or enforce the mandate until further court order.

Take shots, take tests, or “hit the road.” In so doing, the court noted that the standing of the petitioners, many of whom were private employers, was “obvious” because the mandate “imposes a financial burden upon them by deputizing their participation in OSHA’s regulatory scheme, exposes them to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road.” Applying the four traditional stay factors, the court concluded that each favored a stay in this case.

Likelihood of success. First, the court considered the intent of Congress in enacting the Occupational Safety and Health Act, which created OSHA. It was not, nor could it be, the court claimed, “intended to authorize a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways.” Although “dubious” about whether the mandate would pass constitutional muster, something it did not reach, the court determined it was “nonetheless fatally flawed on its own terms.”

Indeed, the court described it as the “rare government pronouncement” that was both over- and under-inclusive. It was overinclusive because it applied across the board in all industries and workplaces without accounting for obvious differences in risk factors, such as for security guards who work alone on a night shift. It was underinclusive because it excluded employees with 98 or fewer coworkers, while purporting to protect employees with just one more coworker. Moreover, its “stated impetus” was a “purported ‘emergency’ that the entire globe has now endured for nearly two years,” the court noted.

Exceeded authority. The promulgation, the court concluded, “grossly exceeds OSHA’s statutory authority.” 29 U.S.C. § 655(c)(1) allows OSHA to bypass typical notice-and-comment proceedings for six months by providing “for an emergency temporary standard to take immediate effect upon publication in the Federal Register” if certain requirements are met. Specifically, the court stated, “§ 655(c)(1) plainly provides, to be lawfully enacted, an ETS must: (1) address ‘substances or agents determined to be toxic or physically harmful’—or ‘new hazards’—in the workplace; (2) show that workers are exposed to such ‘substances,’ ‘agents,’ or ‘new hazards’ in the workplace; (3) show that said exposure places workers in ‘grave danger’; and (4) be ‘necessary’ to alleviate employees’ exposure to gravely dangerous hazards in the workplace.” This is an “extraordinary power,” the court reasoned, that prior courts have cautioned should be “delicately exercised” and only in “limited situations.”

“One-size-fits-all sledgehammer.” However, the power was not exercised delicately in this case, the court determined. “Quite the opposite,” it opined, “rather than a delicately handled scalpel, the Mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly ‘grave danger’ the Mandate purports to address.”

First, the court noted that the state of Texas made a compelling argument that an airborne virus is beyond the purview of an ETS under Section 655(c)(1) and that the agency was transparently stretching and attempting to “shoehorn an airborne virus that is both widely present in society (and thus not particular to any workplace) and non-life-threatening to a vast majority of employees into a neighboring phrase connoting toxicity and poisonousness.” Second, any argument that COVID-19 was a “new hazard” would contradict OSHA’s prior representations that it is a “recognized hazard.”

A grave danger? Moreover, OSHA fell short of the threshold burden of showing that employees covered by the ETS were, in fact, exposed to COVID-19. It was also unclear that COVID-19 posed the kind of grave danger contemplated by section 655(c)(1), the court noted. The mandate, by its own language, concedes that the effects of COVID-19 could range from “mild” to “critical” and the status of the spread of the virus has varied.

Additionally, prior statements from the Biden Administration and OSHA, the court claimed, belied the idea that this was the kind of emergency that allows OSHA to take this measure. The court noted that in December 2020, the President was quoted as saying that he did not think vaccines should be mandatory and quoted a statement by the Principal Deputy Assistant Secretary in a May 2020 letter that it would not be necessary for OSHA to issue an ETS because “OSHA lacks evidence to conclude that all infectious diseases to which employees may be exposed at a workplace constitute a ‘grave danger’ for which an ETS is an appropriate remedy.”

While recognizing that OSHA’s assessment is entitled to deference, the court concluded that “this is not a case where any amount of deference would make a bit of difference.”

Is the mandate necessary? Considering whether the mandate is necessary, the court again observed that it “is staggeringly overbroad” and, noting by way of example a solo truck driver, failed to consider that “the ongoing threat of COVID-19 is more dangerous to some employees than to other employees.” Indeed, the court explained, earlier in the pandemic OSHA appeared to recognize the “practical impossibility of tailoring an effective ETS in response to COVID-19” and “itself admitted that ‘an ETS once issued could very well become ineffective or counterproductive, as it may be informed by incomplete or ultimately inaccurate information.’”

Underinclusive and poorly-suited. In addition to being a “poorly-suited approach” to protecting workers, the court concluded that the mandate was underinclusive because it fails to protect the most vulnerable worker if his employer employs 99 workers of fewer. While it may be true that larger employers will be better able to administer and sustain the mandate, the court explained, that “kind of thinking belies the premise that any of this is truly an emergency.” Such under-inclusiveness is a “telltale sign” that the government’s interest is not compelling, the court observed, and that the mandate’s “true purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary.”

Other considerations. Additionally, the court noted that OSHA cannot use its ETS powers as a stop-gap measure, as has been recognized by courts, and that the mandate “flunks a cost-benefit analysis.” Furthermore, the court outlined “serious constitutional concerns” raised by the mandate, including that it likely exceeded the federal government’s authority under the Commerce Clause by regulating noneconomic activity that traditionally fell within the states’ police power. Moreover, it raised concerns over separation of powers principles.

It is clear that denial of the proposed stay would do the petitioners irreparable harm, the court determined, while causing OSHA “no harm whatsoever.” And it concluded that a stay was “firmly in the public interest.”

Judge Duncan’s concurrence. Judge Stuart Duncan wrote separately to “underscore one reason” why the challenges “are virtually certain to succeed.” Specifically, Judge Duncan noted that OSHA “invokes no statute expressly authorizing the rule.” Instead, it issued it under an emergency provision that addresses “substances,” “agents,” or “hazards,” that has only been used 10 times in 50 years, and that has never been used to mandate vaccines.