The Fifth Circuit doubles down on its stay of OSHA’s vaccine mandate. But relief may only be temporary.

This past Friday, the Fifth Circuit reaffirmed its initial stay of the Biden administration’s vaccine mandate which was issued via an emergency temporary standard (ETS) by the Occupational Safety and Health Administration (OSHA) on November 5, 2021.

The mandate would require citizens who work at businesses with 100 plus employees to vaccinate against Covid-19 or undergo weekly tests (at their own expense) and wear masks. In an opinion, available on the 5th Circuit’s website, the Court found that the mandate was “staggeringly overbroad.”

In coming to this determination, the Court analyzed four traditional stay factors:

  1. Whether the stay applicant[s] has made a strong showing that he is likely to succeed on the merits
  2. Whether the applicant[s] will be irreparably injured absent a stay.
  3. Whether issuance of the stay will substantially injure the other parties interested in the proceeding
  4. Where the public interest lies. 

The Court found that all the factors weighed in favor of a stay.

1. The Court found that petitioners are likely to succeed on the merits.

The Court started its opinion by analyzing OSHA’s purpose as outlined by Congress – to ensure “safe and healthful working conditions” while preserving human resources. It found that this purpose does not and likely could not include a broad sweeping public health action like the mandate.

“It was not—and likely could not be, under the Commerce Clause and nondelegation doctrine—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.”

A. The mandate is over-broad, under-inclusive, and illogically timed.

The Court found that not only was the mandate likely unconstitutional, but it was also both over- and under-inclusive as well as ill-timed.

  • Over inclusive – applying to all employers without taking account for different risk factors.
  • Under inclusive – making arbitrary lines between a “grave danger” in the workplace for employers with 99 or more coworkers vs 98 or fewer coworkers
  • Ill-timed – OSHA took 2 months to respond to Biden’s request for a mandate. The mandate takes 2 months to implement. The US has been facing COVID for 2 years.

Notably, OSHA has refused to issue an ETS for COVID-19 on several occasions for these very reasons.  In a May 2020 D.C. Circuit brief, OSHA wrote that an inflexible ETS could end up “ineffective and counterproductive” and ultimately “may undermine worker protection.” It found that employers were thus better suited to make individualized rules.

One month later, OSHA again “reasonably determined” that an ETS was “not necessary” to “protect working people from occupational exposure to infectious disease, including COVID-19.”

“[A]n ETS meant to broadly cover all workers with potential exposure to COVID-19—effectively all workers across the country—would have to be written at such a general level that it would risk providing very little assistance at all.”

In re AFL-CIO, No. 20-1158 (D.C. Cir. May 29, 2020) at 33-34.

B. The mandate exceeds OSHA’s ETS authority.  

In addition, the Court noted that the OSHA ETS was basically being utilized as a “work-around” by the federal government after President Biden announced his desire for a vaccine mandate.

By utilizing an ETS, OSHA can bypass the six-month notice-and-comment measures that proceed a typical agency rule. In Its 50-year history, OSHA has only issued ten ETSs, six of which were challenged, with only one surviving. The Court described this power as an “extraordinary” one that needs to be “’delicately exercised’ in only certain ‘limited situations.’”   

The Court found no such delicacy at work. “[T]he Mandate is a one-size-fits-all sledgehammer,” wrote Judge Kurt D. Engelhardt. He went on to explain that it also failed to fit into the purview of an OSHA ETS.

Under 29 U.S.C. § 655(c)(1), OSHA may only enact an ETS when it determines that:

  1. Employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and
  2. That such emergency standard is necessary to protect employees from such danger. 

The Court found that the terms “substance or agents” likely do not include an airborne virus widely present in society (and not particular to any workplace), and that “toxicity” and “poisonousness” likely do not encapsulate a virus which is “non-life threatening to a vast majority of employees.” Likewise, OSHA cannot argue that COVID-19 is a “new hazard,” as it has already represented to the D.C. Circuit court that COVID-19 is a “recognized hazard.”  

In addition to these issues, the Court found that the standard is simply too high to fit the contents of the ETS because it requires:

  • Actual exposure to harmful substance – not just danger of exposure
  • That the danger involved is a “grave” one – a very high threshold
  • That the necessity to alleviate the danger exceeds the necessity for a temporary standard – thereby requiring an emergency temporary standard

Here, OSHA cannot meet its first burden of proof, as it cannot show that all the employees covered by the mandate actually are or will be exposed to COVID-19 in the workplace.

Furthermore, COVID-19 does not comfortably fit into the definition of a “grave danger” as defined by §655(c)(1). In fact, the mandate describes its effects as “mild” to “critical” and according to the CDC the 78 percent of Americans who are partially or fully vaccinated against it are “effectively protect[ed] … against severe illness and death.”

Finally, the Court noted that the sense of urgency required for an ETS does not appear to exist, and it questioned why the Biden administration failed to explain its dramatic reversal of its stance on the necessity for vaccine mandates.   

C. The mandate raises serious constitutional concerns.

The Court finally noted that the mandate is underscored with serious constitutional concerns that weigh in favor of the petitioners.

The Court found that the mandate “exceeds the federal government’s authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the States’ police power.”

  1. A person’s choice to remain unvaccinated and forgo testing is noneconomic activity
  2. Long standing precedent states that vaccine mandates fall under the State’s police power

“[C]oncerns over separation of powers principles cast doubt over the Mandate’s assertion of virtually unlimited power to control individual conduct under the guise of a workplace regulation.”

2. The Court found that the applicants will be irreparably injured absent a stay.

The Court found a clear showing that failure to stay the mandate would irreparably harm petitioners.

First, it noted that citizens unwilling to take the vaccine would face a substantial burden on their liberty interests (and for some their freedom of religious exercise).  

For the individual petitioners, the loss of constitutional freedoms “for even minimal periods of time . . . unquestionably constitutes irreparable injury.”

Elrod v. Burns, 427 U.S. 347, 373 (1976) 

Second, companies seeking a stay would also be irreparably harmed due to the financial effects of lost and suspended employees, compliance and monitoring costs associated with fulfilling the mandate, the loss of necessarily diverted resources, and potential stiff financial penalties for failure to enforce.

“[T]he Mandate imposes a financial burden upon [covered employers] 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.”

Third, and finally, the Court noted that the States also have an interest in protecting their constitutionally reserved police powers over public health policies.

3. The Court found that the issuance of the stay will NOT substantially injure OSHA’s interests in the proceeding.

In contrast, the Court found that staying the mandate “will do OSHA no harm whatsoever” because OSHA’s interest in enforcing an unlawful (and likely unconstitutional) ETS is nonexistent. Nor can any abstract harm make up for this.  

4. The Court found that the public interest lies in favor of a stay.

Finally, the Court found that the fourth factor also weighed in favor of a stay because even “the mere specter of the Mandate has contributed to untold economic upheaval in recent months.”

Thus, from an economic standpoint, staying the mandate is favored. Furthermore, the Court noted that the public interest is also served by maintaining the nation’s constitutional structure and liberty of individuals “to make intensely personal decisions according to their own convictions – even, or perhaps particularly, when those decisions frustrate government officials.”

The Court finalized its stay pending adequate judicial review of the petitioner’s underlying motions for a permanent injunction and ordered OSHA to take no steps to implement or enforce its mandate until further court order.

What Lies Ahead

While the decision comes as a welcome victory for many, relief may only be temporary. On Tuesday, all the pending challenges against OSHA will be consolidated into one federal appeals court through a process known as the multi-circuit lottery” which will be conducted by the DC-based Judicial Panel on Multidistrict Litigation. The names of the circuit courts where there are currently legal challenges to the mandate will be placed in a raffle drum, and an official will pull out the name of a circuit court, where all the cases will then be transferred.

While the future remains uncertain, the recent words of Supreme Court Justice Neil Gorsuch ring with an appropriate truth.

“If human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency.”

Post by CJ Fisher


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