Assessing the Fifth Circuit's Decision Staying OSHA's Vaccinate-or-Test Emergency Temporary Standard

While the court identified serious problems with the new OSHA regulation requiring larger employers to vaccinate or test their workers, its opinion was rushed and sloppy.

On Friday evening, the U.S. Court of Appeals for the Fifth Circuit reaffirmed its initial stay of the Occupational Safety and Health Administration's Emergency Temporary Standard (ETS) mandating that employers with 100 or more employees require their employees to obtain COVID-19 vaccinations or don masks and submit to regular testing.  The courts decision in BTS Holdings L.L.C. v. OSHA stays OSHA's standard and bars the agency from taking any steps to enforce it, pending judicial review on the merits, which may well occur in another circuit. (Josh Blackman noted the ruling here.)

The Fifth Circuit's decision was produced quickly, and it shows. The opinion is long on rhetoric, but relatively short on careful analysis. While it identifies some serious problems with the OSHA ETS, it is also sloppy at points and embraces sweeping assertions that are hard to square with existing doctrine. It also gives relatively short shrift to the factors courts are to weigh when considering stay requests (but somehow found the time to cite an MSNBC host's tweet that was retweeted by White House Chief of Staff Ron Klain).

On the merits, the Fifth Circuit identified multiple reasons why it is unlikely that the OSHA ETS will survive judicial review. Specifically, it does not appear that OSHA has adequately demonstrated that this ETS is "necessary" to protect employees from the "grave danger" of COVID-19 exposure in the workplace. I previewed why this could be a problem for OSHA here and here.

The most serious problem for OSHA flagged by the Fifth Circuit is that the ETS applies to many workplaces in which it cannot be argued that COVID-19 is a "grave danger" to unvaccinated employees, while simultaneously exempting many workplaces where such a danger may well exist. This is because, with modest exceptions for wholly outdoors or remote workers, the scope of the ETS is determined by the number of employees in a firm, and not any workplace conditions that could relate to the degree of exposure to COVID-19 or the risk of infection. This is a problem because the OSH Act requires the ETS to be "necessary" (and not merely "necessary or appropriate") to protect against the danger in the workplace, and not in society at large.

In its rule, OSHA claimed that COVID-19 "is readily transmissible in workplaces because they are areas where multiple people come into contact with one another, often for extended periods of time." This is no doubt true of some workplaces, but it is hardly true of all of them—particularly now that many employers have adopted various COVID protocols and expanded opportunities for remote work. As Judge Richard Posner noted when reviewing OSHA's bloodborne pathogen standard (not an ETS) in American Dental Ass'n v. Martin, 984 F.2d 823 (7th Cir. 1993), "OSHA cannot impose onerous requirements on an industry that does not pose substantial hazards to the safety or health of its workers merely because the industry is a part of some larger sector or grouping and the agency has decided to regulate at wholesale." If this was a problem for a regular workplace standard, it is an even greater problem for an ETS. OSHA also failed to adequately address why, when dealing with the workplace risk posed by bloodborne pathogens, making vaccination available was sufficient, but it is not sufficient here.

Having identified statutory and administrative problems with the ETS, the Fifth Circuit went on to discuss "serious constitutional concerns" with the OSHA rule. As much as I like such arguments, the Fifth Circuit's analysis here is severely wanting, and quite aggressive given there was no need to reach any constitutional questions to resolve the issues in this case.

The Fifth Circuit claims:

the Mandate likely exceeds the federal government's authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the States' police power. A person's choice to remain unvaccinated and forgo regular testing is noneconomic inactivity. Cf. NFIB v. Sebelius, 567 U.S. 519, 522 (2012) (Roberts, C.J., concurring); see also id. at 652–53 (Scalia, J., dissenting).

In this passage, the court both mischaracterizes the OSHA ETS and misapplies relevant Supreme Court doctrine. The ETS does not "regulate[] noneconomic activity." The class of activities regulated by the OSH Act is not employee conduct, but the employer's maintenance of a workplace. That is what the Act regulates. It is employers (not employees) who are subjected to the regulations, and against whom the regulations are enforced.  So while an employee's decision not to get vaccinated may be "noneconomic activity," that is not the activity that is being regulated here. (This point was also made by Michael Dorf, with whom I often disagree, but not here.)

Under existing Commerce Clause doctrine, including NFIB,  the operation of a private business, including maintaining a workplace, constitutes economic activity that (when aggregated) may be regulated as substantially affecting commerce among the several states. Like it or not, West Coast Hotel v. Parrish and United States v. Darby are still good law, and federal appellate courts are obliged to follow them.

One might wish to argue that the OSHA ETS is pretextual. The Fifth Circuit suggests as much when it accuses the ETS of "commandeer[ing] U.S. employers to compel millions of employees to receive a COVID-19 vaccine or bear the burden of weekly testing." That may be so, but it does not help the constitutional argument. If the challengers have made a sufficient showing that OSHA is lying about the purpose of this rule, that would be a basis for vacating the agency's action on APA grounds (as the Supreme Court did in the Census case). It's not a reason to opine on the constitutional question though. Concern for pretext has not been a valid basis for challenging exercises of the commerce clause in several decades. Further, the commandeering argument here, taken seriously, would invalidate a wide range of conventional business regulation, including OSHA rules that encourage or require employees to engage in a wide range of noncommercial conduct, including the donning and use of protective equipment.

Having concluded those challenging the ETS are likely to prevail on the merits, the Fifth Circuit offers only cursory consideration of the other stay factors (whether the applicant will be irreparably injured, whether a stay will harm others, and whether a stay is consistent with the public interest) without any mention of any potential public health  benefits the ETS might provide. Whatever the OSHA ETS's failings, such cursory review is not a hallmark of serious legal analysis.

All the above makes me wonder why the judges on the panel (Engelhardt, Duncan, and Jones) felt it was necessary to issue this opinion at all. An initial stay had already been entered and the multicircuit lottery to determine which circuit will handle the remaining proceedings will be held tomorrow. It is as if the Fifth Circuit felt the need to get the first word on the ETS in the federal reports, even if that entails rushing a slapdash opinion that could soon be overtaken by events.

I share the ETS challengers' and Fifth Circuit's concern for federal regulatory overreach, but I am skeptical that rushed judicial overreach is a prudent response.

[Note: I've cleaned up a few typos.]