Extending Its Stay, the 5th Circuit Says OSHA’s Vaccine Mandate Is ‘Fatally Flawed’

U.S. Court of Appeals 5th Circuit has extended their stay on Biden Administration’s COVID-19 vaccination mandate for private employer. This mandate, which the three-judge panel unanimously criticized as “fatally flawed and staggeringly broad,” was extended by the Court of Appeals. According to the stay issued by the court on Friday evening OSHA is prohibited from implementing or enforcing the Mandate without a court order. The court has temporarily halted OSHA’s implementation and enforcement of the Mandate until it receives a judicial review. However, the court made no doubt about its willingness to grant these motions. “The petitioners’ challenges against the Mandate are highly probable of success on merits.”

The appeals court was responding to several lawsuits challenging the vaccine mandate, including complaints by businesses, employees, and five states (Louisiana, Mississippi, South Carolina, Texas, and Utah), all of which are now consolidated under the heading BST Holdings v. OSHA. Original stay issued by the 5th Circuit on November 6th, the day following OSHA’s “emergency temporary standards” (ETS), which required companies employing 100 people or more to have COVID-19 vaccinations or face masks and be subject to weekly testing. The ETS was deemed to raise “grave constitutional and statutory issues” by the stay. Judge Kurt Engelhardt, Edith Jones, and Stuart Kyle Duncan wrote the new order.

It stated that OSHA’s authority to regulate the ETS was “grossly exceeded” by the ETS and that it “raises serious constitutional questions.” It says the Occupational Safety and Health Act, the purported legal basis for the mandate, “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.”

The ETS option, which OSHA rarely uses, allows the agency to circumvent the usual rule making process, which typically takes years, by imposing regulations that take effect immediately upon publication. The agency must determine a “grave risk” to workers from exposure to agents or substances that are toxic or physical harmful. This will allow it to bypass the OSHA public hearing, comment, or notice requirements. The agency must also show that the emergency standard is necessary to protect workers from this danger.

5th Circuit points out that it is difficult to meet the requirements of an ETS statutory requirement. Engelhardt writes, “In fifty years of existence OSHA has only issued ten ETSs.” Six were defeated in court, but only one survived. It is because the Agency and courts have always agreed that emergency actions are rare.[e]You will receive xtraordinary power [OSHA]Under the emergency provisions under the Occupational Safety and Health Act’, so ‘[t]”Hat power should only be used in emergencies and not to protect the person.

OSHA’s Electronic Safety and Health Program (ETS) “is nothing but delicate[] exercise[]The 5th Circuit states that the 5th Circuit is referring to this “extraordinary power”. The Mandate, rather than being a finely handled scalpel is an all-purpose sledgehammer. It doesn’t make any effort to accommodate differences between workplaces and workers that could have an impact on their susceptibility to what the Mandate claims to be a ‘grave threat’.

The court thinks it is doubtful that the COVID-19 virus qualifies as a “toxic or physically harmful” substance or agent—a key point of contention in the government and petitioner briefs that preceded this ruling. Judges are skeptical about the virus being a “new danger.” The judges say Texas presented a compelling argument that this phrase must be understood within context in order to avoid airborne viruses.

Courts rely on the principle of noscitur is a sociis—a word is known by the company it keeps,'” Engelhardt writes. OSHA tried to combine an airborne virus which is widely distributed in society, and therefore not particularly relevant to any work place, and that does not pose a threat to life with a phrase that connotes toxicity and poisonousness. [a] transparent stretch.” He said that OSHA could make any argument that COVID-19 was a “new hazard.”[]OSHA’s earlier representation to D.C. Circuit[t]It is obvious that COVID-19 poses a serious hazard.

This aside, OSHA’s 5th Circuit ruled that OSHA had failed to show OSHA is actually “exposed to grave danger.” OSHA was able to demonstrate workplace exposure and transmission by providing “myriad studies” on COVID-19 outbreaks, “clusters”, and other workplace incidents as evidence. That argument “misses the mark,” Engelhardt writes, because “OSHA is required to make findings of exposure—or at least the presence of COVID-19—in AllCovered workplaces OSHA cannot show that all workplaces covered under the Mandate have COVID positive employees or that there has been or will be ‘outbreaks’ in any industry.

Are there any instances where COVID-19 poses a grave danger? According to the court, “The Mandate acknowledges that COVID-19 can have a range of mild effects to serious consequences.” It notes that COVID-19 is a threat due to transmission trends. For the greater than
seventy-eight% of Americans over 12 years old [who are] either fully or partially inoculated against it,” Engelhardt writes, “the virus poses—the Administration assures us—little risk at all.”

OSHA’s past positions concerning communicable diseases, the court says “further belie” the belief that COVID-19 creates an emergency which allows OSHA the ability to use the extreme measures required by the ETS. It says that the ETS “is not serious in trying to understand why OSHA or President were opposed to vaccine mandates prior here.”

OSHA released a standard in 1989 that addressed bloodborne pathogens and employees to whom they could come in contact during work. OSHA turned down a mandate for vaccinations. OSHA said health in general was a personal matter, and OSHA would prefer to encourage cooperation from employees, not force them to comply with governmental pressure. [a] vaccination program.” OSHA in June 2021 issued an ETS COVID-19 for health care workers. It did not determine mandatory vaccination to be appropriate or necessary. Last December, President Joe Biden said he did not think COVID-19 vaccination “should be mandatory”—a position that administration officials reiterated as late as July and August, shortly before the White House announced OSHA’s vaccine mandate.

OSHA’s ETS has yet to be shown necessary, even though the 5th Circuit believes COVID-19 presents a “grave threat” at work. OSHA attempted to meet that criteria by exempting workers who only work outdoors, or work remotely from their homes or work in other locations away where they are not exposed to other employees. The court found that this attempt to tailor the ETS was inadequate.

Engelhardt says that “The Mandate seems staggeringly wide-ranging.” The Mandate covers 2/3 of the private sector workers of America. However, it fails to recognize the most important fact: COVID-19, which is still a threat to many employees, is far more hazardous to some than other employees. A 28-year old trucker who spends most of his day in his car is less susceptible to COVID-19 that a 62-year-old prison janitor. Unvaccinated workers who are naturally immune to the virus may be less at risk than those unvaccinated workers. It covers virtually all workplaces and industries in America. However, it fails to recognize the differences in the risk faced by, for example, a security guard working alone at night and a meatpacker who works in cramped warehouses. OSHA fails almost entirely to respond or address much of the reality.

However, Engelhardt points out that ETS does not cover businesses with less than 100 workers. Engelhardt points out that the Mandate does not provide protection for America’s most vulnerable workers if they employ 99 or less people. The reason? Because, as even OSHA admits, companies of 100 or more employers will be better able to administer (and sustain) the Mandate….That may be true. This kind of thinking ignores the fact that none of this is really an idea. Emergencies. In fact, the underinclusiveness in this type is frequently interpreted as a sign that the government isn’t really motivated to enact a liberty restraint pronouncement.

According to the court, “the Mandate’s underinclusive nature implies that it isn’t intended to improve workplace safety but to increase vaccine uptake through any means necessary.” This is how the White House actually presented the mandate to Congress in September. The aim, it said, was to “reduce the number of unvaccinated Americans by using regulatory powers and other actions to substantially increase the number of Americans covered by vaccination requirements.”

Petitioners claimed that workplace safety was just a pretext to achieve that goal. The 5th Circuit seems inclined to concur. Engelhardt reports that after the President expressed his disappointment with September’s vaccine rate, Engelhardt said, “The Administration looked over the U.S. Code to find authority or a “workaround” for imposition of a national vaccination mandate. OSHA ETS was the vehicle on which it crashed.

The 5th Circuit said that OSHA’s statute authority was exceeded by the ETS. It also stated that the Commerce Clause authority of the Federal Government is likely to be overridden by the ETS because it regulates economic inactivity. [i.e., the decision to forgo vaccination]This falls within the purview of the States’ police authority. The court also stated that “concerns about separation of power principles cast doubt over Mandate’s assertion virtually unlimited power to regulate individual behavior under the cover of a workplace regulation.”

Engelhardt claims that the ETS “draws its authority from an older statute used in a new manner, imposes almost $3 billion in compliance cost, includes broad medical considerations which lie outside OSHA’s core competencies and purports finally to resolve one of today’s most heatedly debated political problems.” Yet “there is no clear expression of congressional intent…to convey OSHA such broad authority, and this court will not infer one.”

Judge Duncan concurs in Judge Duncan’s opinion. He states that the courts are “expecting Congress to speak clearly whenever authorizing an agency with powers of ‘vast political and economic significance’.” His view is that “whether Congress can enact such an expansive mandate under its interstate Commerce power would pose difficult questions.” He doesn’t think OSHA is capable of doing so.