Vaccine mandates

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

A unanimous three-judge panel concludes that the decree "grossly exceeds OSHA's statutory authority."


The U.S. Court of Appeals for the 5th Circuit has extended its stay on the Biden administration's COVID-19 vaccine mandate for private employers, which the unanimous three-judge panel called "fatally flawed" and "staggeringly broad." The stay, which the court issued on Friday evening, says OSHA shall "take no steps to implement or enforce the Mandate until further court order." It is officially a preliminary pause "pending adequate judicial review of the petitioners' underlying motions for a permanent injunction." But the court left little doubt that it would grant those motions, saying "petitioners' challenges to the Mandate show a great likelihood of success on the 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. The 5th Circuit originally issued a stay on November 6, the day after the Occupational Safety and Health Administration (OSHA) published an "emergency temporary standard" (ETS) demanding that companies with 100 or more employees require them to be vaccinated against COVID-19 or wear face masks and undergo weekly testing. That stay said the ETS raised "grave statutory and constitutional issues," which the new order, written by Judge Kurt Engelhardt and joined by Judges Edith Jones and Stuart Kyle Duncan, spells out in detail.

The court flatly states that the ETS "grossly exceeds OSHA's statutory authority," adding that the mandate "raises serious constitutional concerns." 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. But to avoid the public notice, comment, and hearing requirements that ordinarily apply to OSHA rules, the agency has to identify a "grave danger" to employees "from exposure to substances or agents determined to be toxic or physically harmful or from new hazards." It also has to show the emergency standard is "necessary to protect employees from such danger."

The 5th Circuit notes that the statutory requirements for an ETS are difficult to satisfy. "In its fifty-year history, OSHA has issued just ten ETSs," Engelhardt writes. "Six were challenged in court; only one survived. The reason for the rarity of this form of emergency action is simple: courts and the Agency have agreed for generations that '[e]xtraordinary power is delivered to [OSHA] under the emergency provisions of the Occupational Safety and Health Act,' so '[t]hat power should be delicately exercised, and only in those emergency situations which require it.'"

OSHA's ETS "is anything but a 'delicate[] exercise[]' of this 'extraordinary power,'" the 5th Circuit says. "Rather than a delicately handled scalpel, the Mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers' varying degrees of susceptibility to the supposedly 'grave danger' the Mandate purports to address."

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. The judges are also skeptical that the virus counts as a "new hazard." They say Texas made a "compelling argument" that the phrase should be understood in context to exclude airborne viruses.

"To avoid 'giving unintended breadth to the Acts of Congress,' courts 'rely on the principle of noscitur a sociis—a word is known by the company it keeps,'" Engelhardt writes. "Here, 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 a neighboring phrase connoting toxicity and poisonousness is [a] transparent stretch." He adds that "any argument OSHA may make that COVID-19 is a 'new hazard[]' would directly contradict OSHA's prior representation to the D.C. Circuit that '[t]here can be no dispute that COVID-19 is a recognized hazard.'"

That point aside, the 5th Circuit says, OSHA has failed to make the case that the 84 million workers covered by the ETS are actually "exposed" to the "grave danger" it perceives. The government argued that OSHA had met this test by presenting "myriad studies" of COVID-19 "clusters" and "outbreaks" in workplaces as "evidence of workplace transmission" and "exposure." 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 all covered workplaces." He says OSHA "cannot possibly show that every workplace covered by the Mandate currently has COVID-positive employees, or that every industry covered by the Mandate has had or will have 'outbreaks.'"

Does COVID-19 pose a "grave danger" in all those settings? "The Mandate itself concedes that the effects of COVID-19 may range from 'mild' to 'critical,'" the court notes. It adds that the threat from COVID-19 depends on transmission trends, which have "varied since the President announced the general parameters of the Mandate in September," and the vaccination rate among employees. "For the more than
seventy-eight percent of Americans aged 12 and older [who are] either fully or partially inoculated against it," Engelhardt writes, "the virus poses—the Administration assures us—little risk at all."

The court thinks OSHA's prior positions regarding communicable diseases "further belie the notion that COVID-19 poses the kind of emergency that allows OSHA to take the extreme measure of an ETS." The ETS, it says, "makes no serious attempt to explain why OSHA and the President himself were against vaccine mandates before they were for one here."

In 1989, when OSHA issued a standard addressing bloodborne pathogens to which employees could be exposed in the course of their work, OSHA rejected a vaccination mandate, saying "health in general is an intensely personal matter," and "OSHA prefers to encourage, rather than try to force by governmental coercion, employee cooperation in [a] vaccination program." When OSHA issued a COVID-19 ETS for the health care industry in June 2021, it likewise did not deem mandatory vaccination 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.

Even assuming that COVID-19 poses a "grave danger" in workplaces, the 5th Circuit says, OSHA has not shown its ETS is "necessary" to address it. OSHA tried to satisfy that criterion by exempting employees who work exclusively outdoors or who work from home or other remote locations where they do not come into contact with other employees. But in the court's view, that attempt at tailoring the ETS is inadequate.

"The Mandate is staggeringly overbroad," Engelhardt writes. "Applying to 2 out of 3 private-sector employees in America, in workplaces as diverse as the country itself, the Mandate fails to consider what is perhaps the most salient fact of all: the ongoing threat of COVID-19 is more dangerous to some employees than to other employees. All 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 mandate covers "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." OSHA "fails almost completely to address, or even respond to, much of this reality and common sense."

At the same time, the court says, the ETS is "underinclusive," since it does not apply to businesses that employ fewer than 100 people. "The most vulnerable worker in America draws no protection from the Mandate if his company employs 99 workers or fewer," Engelhardt notes. "The reason why? 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. But this kind of thinking belies the premise that any of this is truly an emergency. Indeed, underinclusiveness of this sort is often regarded as a telltale sign that the government's interest in enacting a liberty-restraining pronouncement is not in fact 'compelling.'"

The court adds that "the underinclusive nature of the Mandate implies that the Mandate's true purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary." That is in fact how the White House presented the mandate 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."

The petitioners argued that workplace safety was merely a pretext for accomplishing that goal, and the 5th Circuit is clearly inclined to agree. "After the President voiced his displeasure with the country's vaccination rate in September," Engelhardt says, "the Administration pored over the U.S. Code in search of authority, or a 'work-around,' for imposing a national vaccine mandate. The vehicle it landed on was an OSHA ETS."

In addition to exceeding OSHA's statutory authority, the 5th Circuit says, the ETS "likely exceeds the federal government's authority under the Commerce Clause, because it regulates noneconomic inactivity [i.e., the decision to forgo vaccination] that falls squarely within the States' police power." Furthermore, the court says, "concerns over separation of powers principles cast doubt over the Mandate's assertion of virtually unlimited power to control individual conduct under the guise of a workplace regulation."

The ETS, Engelhardt says, "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." Yet "there is no clear expression of congressional intent…to convey OSHA such broad authority, and this court will not infer one."

In a concurring opinion, Judge Duncan emphasizes that courts "expect Congress to speak clearly when authorizing an agency to exercise powers of 'vast economic and political significance.'" He thinks "whether Congress could enact such a sweeping mandate under its interstate commerce power would pose a hard question." But "whether OSHA can do so does not."