Vaccine mandates

The Biden Administration Is Asking an Appeals Court to Lift the Order Blocking OSHA's Vaccine Mandate

The government argues that the 5th Circuit erred in concluding that the rule "grossly exceeds OSHA's statutory authority."


The Biden administration today asked a federal appeals court to dissolve the stay blocking implementation of its vaccine mandate for private employers, warning that any delay in enforcing the rule "would likely cost many lives a day." In an emergency motion filed with the U.S. Court of Appeals for the 6th Circuit, the government's lawyers say there is no merit to the statutory or constitutional arguments against the mandate, which demands that companies with 100 or more employees require them to be vaccinated against COVID-19 or wear face masks and submit to weekly testing.

The Occupational Safety and Health Administration (OSHA) published that "emergency temporary standard" (ETS) on November 5. The U.S. Court of Appeals for the 5th Circuit temporarily blocked it the following day, saying it raised "grave statutory and constitutional issues." The 5th Circuit extended its stay on November 12, saying the ETS is "fatally flawed" because it "grossly exceeds OSHA's statutory authority." Last week, various challenges to the mandate, including the 5th Circuit cases, were consolidated and assigned by lottery to the 6th Circuit, which the government is now asking to override the other court's order.

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 said OSHA had failed to satisfy those statutory requirements. It added that the mandate "raises serious constitutional concerns." The government says the appeals court was wrong on both counts.

The administration's motion recapitulates the dispute about whether the COVID-19 virus counts as a "physically harmful agent" or a "new hazard." The government says it is both, citing favorable dictionary definitions, prior OSHA policy, and the relatively recent discovery of the coronavirus, which "was unknown in the United States until early 2020."

The 5th Circuit, by contrast, suggested that was not recent enough to justify an emergency standard. It wondered why OSHA waited nearly two years before declaring a workplace emergency. The government says changing circumstances, including business re-openings, the development of vaccines, and the proliferation of the especially contagious delta strain, explain the delay.

The 5th Circuit suggested that OSHA's mission is limited to hazards that are either unique to workplaces or especially acute there, as opposed to dangers that are "widely present in society." It said COVID-19, a contagious disease that can be transmitted in any place where people gather, falls into the latter category.

The government notes that "OSHA has required precautions for bloodborne pathogens, which can be contracted outside the workplace, and has long imposed workplace sanitation and fire rules, even though such concerns are not workplace-specific." It says "workplace dangers have long been understood to include the dangers of contracting communicable diseases as a result of being in close proximity to other employees." And it argues that "COVID-19 is a particularly acute workplace hazard," because "the nature of workplaces is that employees come together in one place for extended periods and interact, thus risking workplace transmission of a highly contagious virus."

The 5th Circuit faulted OSHA for issuing a "staggeringly broad" rule that failed to adequately consider variations in risk between industries, workplaces, and employees. The government says such tailoring is neither practical nor legally required.

The appeals court said OSHA's 100-employee cutoff made the ETS "underinclusive," which suggested the agency was not actually motivated by a desire to promote workplace safety, as opposed to pursuing President Joe Biden's general goal of boosting the nationwide vaccination rate. The government says OSHA is "proceeding in a stepwise fashion" by applying the ETS to "companies that OSHA is confident will have sufficient administrative systems in place to comply quickly." It says the agency may ultimately decide to include smaller businesses.

The 5th Circuit said OSHA's mandate raises potential problems under the nondelegation doctrine, which is supposed to uphold the separation of powers by constraining lawmaking by executive agencies. The government notes that the nondelegation doctrine has almost never been used to overturn a congressional grant of power. All the doctrine requires is that such grants include an "intelligible principle" to guide agency action, a standard the government thinks is easily met by the statutory criteria for an ETS.

The 5th Circuit said OSHA's rule "likely exceeds the federal government's authority under the Commerce Clause, because it regulates noneconomic inactivity [i.e., the individual decision to forgo vaccination] that falls squarely within the States' police power." The government says that's the wrong way to look at the mandate.

"Congress has long regulated companies engaged in interstate commerce in a variety of ways," the motion notes, "and the Supreme Court has upheld such regulations of employment conditions as within Congress's commerce power." The government says the ETS "regulates employers who have affirmatively chosen to participate in interstate commerce" and "establishes conditions for employees' safe participation in employment—an economic activity." Like "many federal laws that regulate business conduct," it says, the standard "prescribes rules concerning how to engage in that commercial activity, and those rules sometimes require taking actions."

The 5th Circuit said OSHA shall "take no steps to implement or enforce the Mandate," which was scheduled to take full effect on January 4, "until further court order." Because "the harms to the government and the public…of continuing the stay would be enormous," the administration argues, the 6th Circuit should dissolve it entirely. Failing that, the government says, the 6th Circuit should limit the stay to the parts of the ETS dealing with vaccination, thereby allowing the testing and masking requirements to take effect.