Yesterday’s U.S. Court of Appeals in the 5th Circuit stayed Biden Administration’s COVID-19 mandate for private employer, effective Friday. Federal Register. The appeals court said the arguments made by the petitioners—a Louisiana supermarket chain and six employees of a Texas company that makes kitchen ventilation systems—”give cause to believe there are grave statutory and constitutional issues with the Mandate.”
Although the vaccine rule was first announced in September, it was only unveiled last Thursday. It gives companies with 100 or more employees two options. Either they can have a mandated vaccination policy that includes limited exceptions or make unvaccinated employees wear masks to undergo COVID-19 tests every week. According to the White House, the mandate is part of an overall effort to increase the national vaccination rate. It stated that the goal is to reduce the unvaccinated Americans through regulatory powers and other measures to significantly increase vaccination coverage.
However, the federal government doesn’t have general authority over public health and communicable diseases. Vaccinations are solely state responsibility. Therefore, the government presented the vaccination mandate as an “emergency temporarily standard” (ETS), that was issued by OSHA. OSHA’s primary responsibility is to protect workers from work-related hazards. This legal strategy, as the 5th Circuit stated, leaves the order open to challenges on both constitutional and statuteual grounds.
Plaintiffs BST Holdings v. OSHAThey are represented in Chicago by Liberty Justice Center and Louisiana’s Pelican institute for public policy. They argue that even if the ETS were not, the authority to OSHA to issue such an expansive order would be beyond the federal government’s ability to regulate interstate commerce. This also violates the nondelegation doctrine which restrains executive agencies from making law.
OSHA does not use the ETS option very often. This allows them to bypass the traditional rule-making process that can take years and impose regulations immediately after publication. To avoid OSHA’s public comment and hearing requirements, OSHA must identify an “extreme danger” for employees from “exposure to substances or agents that have been determined to be harmful, toxic, or new. You must show that an emergency standard is required to safeguard employees against such danger.
In general, plaintiffs in OSHA case 5th Circuit say that ETS extends beyond OSHA’s responsibility to “occupational health & safety,” because it is “not related to work.” They claim that the agency has authority over all workplace hazards, and “no hazard you might face anywhere else in the world.”
5th Circuit Brief of Plaintiffs notes that OSHA has not attempted to apply a rule as broad. While the agency had been considering an “Infectious disease Regulatory Framework” for “airborne infectious diseases since 2010, the agency “has repeatedly put the idea on hold, leaving it languishing on its no-action agenda.” OSHA’s previous standard on vaccination required that employers who could expose workers to blood or any other potentially infectious material at work must be vaccinated. Take advantage of this offerEmployees are eligible for free Hepatitis-B vaccination But even that standard didn’t work. Please enterIt did not provide vaccination against a widespread, epidemic threat of communicable diseases.
Plaintiffs also argue that COVID-19 isn’t a toxic agent or substance, and OSHA cannot try to string this disease under the umbrella of ‘new dangers’. This phrase, according to the plaintiffs, must be understood within context in order to exclude airborne virus: “Because Congress specifically allowed for an ETS be issued for substance or agents that are toxic or physically hazardous, this catch-all phrase for other hazards should be read in light and restricted to items similar to those it covers.”
The brief states that OSHA would not have “unbridled power” to issue any regulations which could have the effect of stopping the spread of communicable diseases. This could be “the shutdown of an entire facility.”
industry [such as meatpacking]It might be home to a very high level of poverty. [incidence]COVID-19,” “a national shutdown AllEmployers involved in interstate commerce” or “an OSHA mandate mandating all customers who visit OSHA-regulated business locations to wear a mask,” or “a regulation mandating the use of appropriate vitamins for employees.”
Supreme Court cautioned that it was not possible to assume Congress meant to allow executive actions that had broad economic impacts. In 2014, the Court declared that when an agency asserts to have the power to regulate large swathes of America’s economy under a long-extinct statute, it should be cautious. “We expect Congress will speak up if it wants to grant agency decisions that have a huge ‘economical’ and ‘political’ significance.
OSHA claims it is responding “to a grave danger” and therefore should have an emergency standard. However, the timing of ETS contradicts the claim made by plaintiffs. Nearly two years after the outbreak, the regulation was published. This is nearly one year after COVID-19 vaccines were approved by the Food and Drug Administration (FDA). It also comes more than two months before the FDA granted full approval to the Pfizer vaccine. Plaintiffs argue that any claims of exigency are undermined by the ETS’ extended timeline. And the best part is, on the day that ETS was published (November 4), the White House said it was delaying the federal contractor vaccination mandate. It was to be delayed from December 8, 2008 to January 4, further undermining its claim of exigency. Private employers also have until Friday to comply with Friday’s ETS. Plaintiffs claim that true ‘grave threats’ don’t wait for the holiday season to start spreading.
This brief asks whether private employers should have an ETS to guard against COVID-19. OSHA’s June COVID-19 ETS did not contain a requirement for vaccination. Plaintiffs argue that OSHA has now abandoned its claim that a mandatory vaccine requirement was necessary because OSHA’s earlier ETS (issued months ago) did not consider the need to mandate vaccinations for any healthcare workers. The plaintiffs also point out that OSHA supported the instruction of students in public schools even though most of them weren’t vaccinated. This suggests that there may be other options.
Because COVID-19 can be missed in weekly testing, employees can still have the virus even if they are not vaccinated. The rule also doesn’t apply to customers and other non-workers who might transmit COVID-19 to their workplace. The plaintiffs claim that the ETS is too broad because it doesn’t consider vulnerability due to pre-existing conditions or age. They also argue that the ETS covers every employee, even though different employees face different risks.
According to the brief, several plaintiffs only interact informally with their colleagues and are therefore not required to submit to COVID-19 testing. They also do not have to be required to show COVID-19 results. It is highly unlikely that they will spread COVID-19 among colleagues whom they might only meet a handful of times per year. The plaintiffs claim that the ETS applies to all workplaces of employers with 100 employees or more. This means it does not take into account the risk of different workplaces. However, it cannot be considered “necessary” for all workplaces.
Plaintiffs argue that Congress could not grant OSHA the authority it seeks. However, this would be against the nondelegation theory, which seeks to maintain the separation between powers and requires an “intelligible rule” to direct regulation by executive agency. OSHA believes that the agency is able to set whatever legal requirements it wants, according to the brief. [it]Regardless of their connection to safety at work, they can still be granted wishes. The government claims that OSHA now has the authority to not only set workplace safe levels for potential carcinogens or to require employee safety trainings but also to oversee the medical care of workers away from the work place. OSHA is able to demand that vaccines be mandated by companies.
Plaintiffs argue also that Congress does not have authority to require private sector employees to choose between testing and masking. The Commerce Clause can be interpreted by the Supreme Court as allowing the federal government to regulate interstate commerce activities even though they do not exist in other states. Courts are required to determine whether a particular regulation is compatible with the Commerce Clause. They will consider the “economic character” of an intrastate activity, whether it contains a “jurisdictional component” that can “establish if Congress’ regulation is interstate Commerce”; the congressional findings concerning the impact of the regulated activity on interstate trade; and the effect of that impact on the Commerce Clause.
In this case, the regulated “activity”—the decision to forgo vaccination—is not only not “economic”; it is not even an “activity.” According to the plaintiffs, forgoing vaccination would be analogous to not purchasing approved government medical insurance. A decision which a majority of Court judges could not reach under the Commerce Clause. Sebelius v. National Federation of Independent Business. “If Congress can regulate employees’ individual health decisions under the Commerce Clause,” the plaintiffs say, “then it can mandate that employers require their workers to attend the gym weekly or to eat broccoli”—a reference to a famous hypothetical in the Obamacare case.
How about “jurisdictional elements”? In their brief, the plaintiffs note that “the mandate’s cap on employers with more than 100 employees doesn’t actually limit it.”
Reach to Interstate Activities” since some employers have more than 100 employees
Employees don’t engage in any interstate activities,” but “some employers that have fewer than 100 workers engage in extensive interstate action.”
OSHA or Congress didn’t make “any findings about the effects of COVID-19 shots and interstate commerce testing.” Unvaccinated employees are protected from risks posed by not being vaccinated. This is the agency’s declared goal. The plaintiffs claim that if these choices could be considered to have an impact on interstate commerce it would only be by “pil.”[ing]Inference upon inference” is a term that the Supreme Court says cannot be used to justify federal regulation. It would, “bid fair convert congressional authority under Commerce Clause into a general police force of the kind retained by the States.”
It is unclear which argument the 5th Circuit found persuasive. However, the stay language suggests that the Circuit perceives both constitutional and statutory reasons to question OSHA’s legality. There are additional obstacles to the vaccination mandate, such as lawsuits from the Attorney Generals of 24 States, the 6th, 8th, 11th, 12th, and 13th Circuits.
This week The New York Times Reports state that OSHA has “the authority” to issue a mandate for vaccines. This assessment, judging by the 5th Circuit’s decision to stay the proceedings and the rest of the litigation challenging OSHA’s authority seems premature.