In a 22-page order issued November 12, 2021, the Fifth Circuit reaffirmed its initial stay of OSHA’s vaccine Emergency Temporary Standard (ETS). The 5th Circuit stated that petitioners are likely to succeed on the merits, meaning that OSHA’s ETS is an overreach of its authority on likely a variety of grounds. The 5th Circuit also outlined arguments on why the continued stay is necessary to avoid irreparable harm to the consolidated group of petitioners comprised of private employers and states, both inside and outside the geographical boundaries of the 5th Circuit.

OSHA’s ETS is a Sledgehammer

The Court identifies that the OSHA ETS is both overinclusive in its application to employers and employees across all industries and workplaces in America and underinclusive at the same time because it does not apply to employers with 99 employees or less. The Court also questions the “grave danger” needed to justify the ETS because the country (and the world) have been battling COVID-19 for nearly 2 years. Although OSHA’s ability to establish an emergency temporary standard is an extraordinary power that should be delicately exercised in limited situations, the Court notes that “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.

OSHA’s ETS is a Pretext for the Government to Require Vaccinations

The Fifth Circuit notes that the administration has done a 180 from its previous position on both vaccines and on why an ETS was not necessary without giving a detailed explanation for this flip flop. The Court notes that on the day of President Biden’s pronouncement of his Path out of the Pandemic plans including direction to OSHA to promulgate and ETS for vaccines, the White House Chief of Staff retweeted that the ETS “is the ultimate work-around for the Federal govt to require vaccinations.” The Court also notes that in litigation before the D.C. Circuit last year, the government argued that an ETS for COVID-19 was unnecessary. The Court also quoted OSHA’s previous position on vaccinations in the preamble to its regulation on bloodborne pathogens, in which it stated that “Health in general is an intensely personal matter….OSHA prefers to encourage rather than try to force by governmental coercion, employee cooperation in [a] vaccination program.” 54 Fed. Red. 23,042, 23,045 (May 30, 1989). Notably, OSHA’s bloodborne pathogen standard does not mandate that employees be given the hepatitis B vaccine if they are exposed to a bloodborne pathogen in the workplace—only that an employer offer the vaccine series to exposed employees. Employees may decline the vaccine if they choose and sign a declination form.

The Mandate Raises Serious Constitutional Concerns

The Court also notes that the ETS likely exceeds the federal government’s authority under the Commerce Clause and threatens states’ powers under the 10th Amendment to the U.S. Constitution, which reserves to the states powers not specifically granted to the federal government. The Court further notes that the ETS regulates noneconomic activity—an employee’s personal choice about their individual health and their decision not to get vaccinated or to undergo testing—which falls squarely within the States’ police power.

Judge Duncan, in his concurrence granting the continued stay, notes that the sweeping mandate of the OSHA ETS poses a difficult constitutional question of whether Congress would be authorized to pass such legislation under the Commerce Clause. But in his opinion, OSHA clearly does not have such authority.

Conclusion

The Fifth Circuit’s order continuing the stay signals how it would likely rule if it wins the multi-state district lottery and gets to decide the merits of the challenges to OSHA’s ETS. Even if the 5th Circuit does not end up adjudicating the merits of the ETS, at the very least, it creates a roadmap for other circuits to follow.