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Fifth Circuit Extends Stay of OSHA’s Vaccine/Testing Mandate

On November 12, the Fifth Circuit extended its stay on OSHA’s COVID-19 vaccination and testing emergency temporary standard (ETS), which mandated that employers with 100 or more employees require their employees to get vaccinated or undergo weekly testing for COVID-19. The Fifth Circuit’s opinion also ordered OSHA to take no steps to implement or enforce the ETS.
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The Court’s opinion states that “for generations,” courts and OSHA have agreed that OSHA’s power to issue an ETS must be “delicately exercised” and utilized “in only those emergency situations which require it.” The Court held that OSHA’s exercise of that power to issue the ETS was “fatally flawed on its own terms” by virtue of being both overinclusive and underinclusive.

In the Court’s view, the ETS was overinclusive by applying to all employers and employees in virtually all industries and workplaces in the United States without any attempt to assess the differences in risks to employees. The Court’s opinion provides the example of a lone security guard working at night, who would have significantly different risks than employees working shoulder to shoulder in a crowded work area with poor ventilation. At the same time, the Court held that the ETS is underinclusive in that it purports to protect “employees with 99 or more coworkers from a ‘grave danger’ in the workplace” but makes no provision to protect the employees of smaller companies.

Moreover, the Court highlighted that the ETS does not consider that “a naturally immune unvaccinated worker is presumably at less risk than an unvaccinated worker who has never had the virus.” Rather, the opinion describes the ETS as a “one-size fits all sledgehammer that makes hardly any attempt to account for differences in workplaces . . . .”

The Court also found that the ETS is constitutionally suspect under the Commerce Clause and the nondelegation doctrine, which limits Congress’s ability to “delegate its legislative authority to executive agencies.” The Court expressed the view that Congress never intended to authorize “a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matters of public health”—nor could it have done so under the Commerce Clause and nondelegation doctrine.

As such, the Court held that the ETS “likely exceeds the Federal Government’s authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the State’s police power.” The Court reasoned that requiring a vaccination or testing falls within the State’s police power and “a person’s choice to remain unvaccinated and forgo regular testing is noneconomic inactivity.”

The Fifth Circuit’s opinion then sets forth a series of statutory deficiencies with the ETS:

  • First, the Court held that OSHA’s failure to act promptly in issuing a vaccine or testing mandate undercuts the assertion that there is a “true emergency.” 
  • Second, the Court noted that the COVID-19 pandemic is almost two years old and the ETS further defers implementation for two months.
  • And third, the Court held that OSHA’s authority to regulate “substances or agents” and “toxic or physically harmful” places did not extend to an airborne virus like COVID-19, and thus that “OSHA’s attempt 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 that statutory framework was a “transparent stretch.”
  • Lastly, the Court found that OSHA was required, and failed to, base its finding that COVID-19 constituted a “grave danger” necessitating an ETS upon actual exposure levels in the workplace. Instead of offering this level of detailed proof to support the ETS, OSHA set forth studies showing clusters or outbreaks that were localized events, which the Court found insufficient.

OSHA is expected to appeal the Fifth Circuit’s decision to the Supreme Court, although when it will do so remains in question. Numerous other challenges to the ETS remain pending in other federal appeals courts. A multi-district panel is expected to consolidate those challenges into one court via a lottery conducted on November 16. As such, OSHA may choose to appeal the Fifth Circuit opinion now or wait for the lottery to go forward in the hope that the other challenges are consolidated in a court that may issue a more favorable decision on the viability of the ETS. In the near term, however, the ETS will remain stayed.

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