On Friday, the Fifth Circuit Court of Appeals extended its stay of the OSHA’s November 5, 2021 Emergency Temporary Standard (the “Mandate”) requiring employees of companies with 100 or more employees to undergo COVID-19 vaccination or take weekly COVID-19 tests and wear a mask. The Court initially issued a brief stay on November 6, 2021 while OSHA and the plaintiffs who challenged its Mandate briefed the issues to the Court. Having considered these briefs, the Court reaffirmed its initial stay and ordered that “OSHA cannot take any steps to implement or enforce the Mandate until further court order.” This ruling directly affects businesses in Texas, Mississippi and Louisiana over which the Court presides.
The Court explained that “the Mandate imposes a financial burden upon [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.”
As the name suggests, emergency temporary standards “are an ‘unusual response’ to ‘exceptional circumstances,’” and OSHA’s extraordinary power to issue such standards must be ‘delicately exercised.” The Fifth Circuit found that the Mandate was anything but a “delicate exercise.” (emphasis in the original). Instead, the Court called it a “one-size-fits-all sledgehammer,” that makes no attempt to account for differences in workplaces and workers and the degree of danger they may face.
Plaintiffs Are Likely to Succeed on the Merits, Which Means Obtaining a Ruling from the Court that OSHA Did Not Have the Authority to Issue the Mandate
The Court found that the Mandate was “flawed” in that if was overinclusive and underinclusive at the same time:
Indeed, the Mandate’s strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt 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) and underinclusive (purporting to save employees with 99 or more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat).
Additionally, the panel of three appellate judges found that there was no “emergency” that would require an issuance of the Mandate when “the entire globe” has been enduring COVID-19 for almost two years, and OSHA took two whole months to address President’s Biden announcement in September that he intended to have a national vaccine mandate.
Furthermore, COVID-19 itself may not qualify as “grave danger” under the statute that authorizes OSHA to issue emergency temporary standards because (1) the effects of COVID-19 vary from “mild” to “critical”; (2) the status of the spread of COVID-19 varied through time; and (3) 78% of Americans aged 12 and older are either partially or fully inoculated against COVID-19.
The Court rejected OSHA’s arguments that contradicted its prior position expressed in a brief that it filed in a case in D.C. in May of last year. At that time, OSHA argued that ““[t]he OSH Act does not authorize OSHA to issue sweeping health standards to address entire classes of known and unknown infectious diseases on an emergency basis without notice and comment.” It also argued that that many “workplaces” covered by a COVID-19 ETS “are not merely workplaces,” but are also “stores, restaurants, and other places occupied by workers and the general public alike, in which the measures called for require a broader lens—and at times a broader mandate—than available to OSHA.” Finally, OSHA had previously stated that COVID-19 was a “recognized hazard,” not a new one, which further undermines its argument that there is an emergency.
The Fifth Circuit also went over several public statements issued by OSHA previously that contradicted its current Mandate, such as a statement by OSHA’s Principal Deputy Assistant Secretary in May 2020 acknowledging as a general matter that it “would not be necessary for OSHA to issue an ETS to protect workers from infectious diseases” 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.” The Court noted that where an agency changes its prior policy, it must provide a detailed explanation for such change, which OSHA failed to do in issuing the Mandate.
The Mandate is Not Necessary
In addition to the Mandate being “staggeringly overbroad” – applying to 2 out of 3 private-sector employees in America, OSHA’s prior statements regarding the possibility of such a mandate make it very clear that until very recently OSHA itself did not believe that a mandate on COVID-19 was necessary:
- “Based on substantial evidence, OSHA determined that an ETS is not necessary both because there are existing OSHA and non-OSHA standards that address COVID-19 and because an ETS would actually be counterproductive. . . . To address all employers and to do so with the requisite dispatch, an ETS would at best be an enshrinement of these general and universally known measures that are already enforceable through existing OSHA tools that require employers to assess and address extant hazards. OSHA’s time and resources are better spent issuing industry-specific guidance that adds real substance and permits flexibility as we learn more about this virus. Given that we learn more about COVID-19 every day, setting rules in stone through an ETS (and later a permanent rule) may undermine worker protection by permanently mandating precautions that later prove to be inefficacious. . . . [A]n ETS could only enshrine broad legal standards that are already in place or direct employers to develop COVID-19 response plans specific to their businesses, something employers are already doing. Such a step would be superfluous at best and could be counterproductive to ongoing state, local, and private efforts. . . . Additionally, employers may choose any effective method to abate a recognized hazard under the general duty clause. Contrary to AFLCIO’s argument, this flexibility is likely to improve worker safety, because employers must choose a means of abatement that eliminates the hazard or materially reduces it to the extent feasible.” See Department of Labor’s Resp. to the Emergency Pet. for a Writ of Mandamus at 33–34, In re AFL-CIO, No. 20-1158 (D.C. Cir. May 29, 2020)
- “[a]dequate safeguards for workers could differ substantially based on geographic location, as the pandemic has had dramatically different impacts on different parts of the country. State and local requirements and guidance on COVID-19 are thus critical to employers in determining how to best protect workers, and OSHA must retain flexibility to adapt its advice regarding incorporation of such local guidance, where appropriate. . . . [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”). Id.
- “an ETS once issued could very well become ineffective or counterproductive, as it may be informed by incomplete or ultimately inaccurate information.” Id.
Additionally, the Court reasoned that the arbitrary application of the Mandate to employers who have 100 or more employees further show that the Mandate is not motivated by a true emergency, but instead is an attempt to “ramp up vaccine uptake by any means necessary.”
The Mandate is Likely Unconstitutional
The Fifth Circuit explained that the Mandate likely exceeds the federal government’s authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the States’ police power. A person’s choice to remain unvaccinated and forgo regular testing is noneconomic inactivity. Mandatory vaccination falls within the States’ police power, as establish in prior case law.
Furthermore, the Mandate exceeds the bounds of OSHA’s statutory authority, as OSHA cannot regulate individual conduct under the “guise of a workplace regulation.” According to the Court, “[t]he Mandate derives its authority from an old statute employed in a novel manner, imposes nearly $3 billion in compliance costs, involves broad medical considerations that lie outside of OSHA’s core competencies, and purports to definitively resolve one of today’s most hotly debated political issues.” All of this is outside OHSA’s authority.
The Court concluded that public interest favored a stay of the Mandate and that OSHA’s interest in enforcing it was “illegitimate” since the Mandate is likely unconstitutional.
CONCLUSION: OSHA may appeal the decision to the U.S. Supreme Court, which may or may agree to hear this case. For now, employers in Texas, Louisiana, and Mississippi do not have to abide by the OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, as the Fifth Circuit ruled that OSHA cannot take any steps to implement or enforce the Mandate until further court order.
Leiza Dolghih is a partner at Lewis Brisbois Bisgaard & Smith LLP in Dallas, Texas and a Co-Chair of the firm’s Trade Secrets and Non-Compete Disputes national practice. Her practice includes commercial, intellectual property and employment litigation. You can contact her directly at Leiza.Dolghih@LewisBrisbois.com or (214) 722-7108 or fill out the form below.