OSHA’s Emergency Temporary Standards SUSPENDED as “Fatally flawed on its own terms.”

November 17, 21

WHAT HAPPENED?!

In response to various emergency motions filed by individuals, employers, religious groups, and states asking the court to stay OSHA’s November 5 Emergency Temporary Standards (“ETS”), and “[b]ecause the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate,” the Fifth Circuit issued an order on November 6, staying – or halting –implementation and enforcement of the ETS until a hearing on the merits. (BST Holdings, L.L.C, et al. v. Occupational Safety and Health Administration (OSHA), Case # 21-60845). The ETS attempted to require employers with 100 or more employees to ensure that employees who report to a workplace are (A) vaccinated against COVID-19 or (B) submit to weekly COVID-19 testing. The November 6 order barred OSHA from taking steps to implement or enforce its ETS.

In response to the ruling – and in blatant defiance of the U.S. Constitution, federalism, and our intricate system of checks and balances – the White House told businesses on Monday, November 8, they “should continue to move forward and make sure they’re getting their workplace vaccinated.” (White House tells businesses to proceed with vaccine mandate despite court-ordered pause, November 8, 2021, https://www.cnbc.com/2021/11/08/biden-vaccine-mandate-white-house-tells-business-to-go-ahead-despite-court-pause.html).

On Friday, November 12, the Fifth Circuit read the parties’ filings and issued another order affirming its November 6 stay, and commanding OSHA (a.k.a. the White House) to take “no steps to implement or enforce the Mandate until further order” :

Enforcement of the Occupational Safety and Health Administration’s “COVID-19 Vaccination and Testing; Emergency Testing Standard remains STAYED pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction.

In addition, IT IS FURTHER ORDERED that OSHA take no steps to implement or enforce the Mandate until further court order. (Emphasis added).

As a result of the Court’s second order, OSHA announced that it has suspended all activities related to the ETS for the time being: “While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” (COVID-19 Vaccination and Testing ETS, November 17, 2021, https://www.osha.gov/coronavirus/ets2).

Because challenges to the ETS have been brought in all but one of the 12 federal circuit courts of appeals, the U.S. Judicial Panel on Multidistrict Litigation will conduct a lottery to select which federal circuit will hear all the appeals in the numerous challenges, including this matter, as is required by 28 U.S.C.A. §2112 (a)(3).

WHAT DOES THIS MEAN FOR ME?

The Fifth Circuit’s order bars OSHA from taking any steps to implement or enforce the ETS, and OSHA has, now, in fact, suspended such activities pending future developments in the litigation. Businesses, however, face an uncertain future with OSHA conceding that it will abide by the Court’s order… while pursuing its reversal.

The Fifth Circuit’s order does not affect the Centers for Medicare and Medicaid Services’ interim final rule for healthcare workers, or Biden’s Executive Order 14042 relating to
vaccinations for employees of federal contractors.

Employers are required to adhere to these requirements as applicable, and any applicable state or local orders addressing workplace safety requirements.

The Constitution vests a limited legislative power in Congress. For more than a century, Congress has routinely used this power to delegate policymaking specifics and technical details to executive agencies charged with effectuating policy principles Congress lays down. In the mine run of cases—a transportation department regulating trucking on an interstate highway, or an aviation agency regulating an airplane lavatory—this is generally well and good. But health agencies do not make housing policy, and occupational safety administrations do not make health policy. Cf. Ala. Ass’n of Realtors, 141 S. Ct. at 2488–90. In seeking to do so here, OSHA runs afoul of the statute from which it draws its power and, likely, violates the constitutional structure that safeguards our collective liberty.

Justice Engelhardt, November 12, 2021, BST Holdings, L.L.C, et al. v. Occupational Safety and Health Administration, Case # 21-60845

WHY DID THE COURT RULE THE WAY IT DID?

OSHA is permitted to bypass the typical notice-and-comment proceedings (a.k.a. due process and checks and balances) for six months by issuing an ETS under 29 U.S.C. § 655(c)(1) if OSHA determines “(A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.” Petitioners, which include five states (Texas, Louisiana, Mississippi (in the Fifth Circuit), South, Carolina, and Utah) and a number of individuals and private organizations, alleged that OSHA failed to meet this demanding standard.

In considering whether or not to grant Petitioners’ emergency motions for a stay of the ETS, the Court had to evaluate four factors: (1) whether the challengers made a strong showing that they are likely to succeed on the merits; (2) whether the challengers will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. The Fifth Circuit concluded that each of these factors supported a stay.

Without deciding whether the ETS passes constitutional muster, the court concluded that the scope of the ETS grossly exceeded OSHA’s statutory authority. The Court noted that the ETS “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).” The Court also concluded that the ETS is “staggeringly overbroad” and that OSHA failed to account for the fact that the ongoing threat of COVID-19 is more dangerous to some employees than to others: “[A]ll else equal, a 28 year-old trucker spending the bulk of his workday in the solitude of his cab is simply less vulnerable to COVID-19 than a 62 year-old prison janitor. Likewise, a naturally immune unvaccinated worker is presumably at less risk than an unvaccinated worker who has never had the virus. The list goes on, but one constant remains — the Mandate fails almost completely to address, or even respond to, much of this reality and common sense.”

Finally, the Court questioned OSHA’s premise that “emergency” circumstances justified the ETS because the ETS does not protect those who work for employers with fewer than 100 employees. The court concluded that the true purpose for the ETS was not to enhance workplace safety, but to increase vaccination rates by any means necessary. The Court also questioned the purported “emergency” supporting the need for the ETS by citing prior statements by OSHA and the Biden Administration that neither an ETS nor vaccine mandate were necessary.

In sum, the Fifth Circuit concluded that Petitioners are likely to succeed on the merits, would suffer irreparable harm if the ETS were not stayed, that Respondent OSHA would suffer no harm if stayed, and the public’s interest in staying the ETS pending a ruling on the merits, thereby justifying affirmation of its November 6 order staying the ETS until a full trial on the merits.