The ETS requires employers with 100 or more employees to enforce vaccines or weekly testing. However, OSHA has recently announced that while it “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.”
The move comes after the Fifth Circuit’s decision to continue its stay of the ETS.
A number of petitioners (including covered employers, individual states, religious groups, and individual citizens) sought a stay barring OSHA from enforcing the Mandate during the pendency of judicial review.
Finding “cause to believe there are grave statutory and constitutional issues with the Mandate,” the Fifth Circuit intervened and imposed a temporary stay on OSHA’s enforcement of the Mandate. On November 6th, the Fifth Circuit agreed to stay the mandate pending briefing and an expedited judicial review. After that review, the Court reaffirmed its initial stay.
The Fifth Circuit’s Order
The Fifth Circuit’s order, before a panel of Circuit Judges Edith Hollan Jones, Kyle Duncan, and Kurt D. Engelhardt, accused the Biden administration of shoehorning its objective of a federal vaccine Mandate into an OSHA ETS—a rarely used procedure. In fact, in his opinion for the panel, Judge Engelhardt noted that in its 50-year history, OSHA has issued only 10 ETSs. Of those, six were challenged in court, and just one survived.
The panel opined that “[a]s the name suggests, emergency temporary standards “are an ‘unusual response’ to ‘exceptional circumstances,” quoting a decision from the DC Circuit. As such, the Court said:
[C]ourts have uniformly observed that OSHA’s authority to establish emergency temporary standards under § 655(c) is an ‘extraordinary power’ that is to be ‘delicately exercised’ in only certain ‘limited situations. But the Mandate at issue here is anything but a “delicate exercise” of this “extraordinary power.”
Instead, the Fifth Circuit said that OSHA has used its authority—not as “a delicately handled scalpel”—but as “a one-size-fits-all sledgehammer. One 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 panel labels the ETS as a rare government pronouncement that’s both over-inclusive (“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 face[d]”) and under-inclusive (“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 Fifth Circuit thought the Biden Administration’s “workaround” was “dubious” as to whether it would pass “constitutional muster,” While the Court didn’t decide that issue, it found the Mandate to be “nonetheless fatally flawed on its own terms.”
The Fifth Circuit is only one of a dozen Courts of Appeal in the federal system. And despite this decision, it is wise for employers to continue with their plans for compliance with the Mandate. This is especially true in California, which is in the Ninth Circuit, a historically liberal circuit. A circuit that may uphold the Mandate if it is given the opportunity to review it in the coming months.
California businesses should also be aware that if they are federal contractors or health care providers, they shouldn’t make decisions based on OSHA’s announcement and the recent decision in the Fifth Circuit. That’s because those employers are subject to different but similar, federal mandates: the Federal Contractor Mandate and the CMS Medicare Omnibus Staff Vaccine Mandate Interim Final Rule. These two federal governmental mandates are being challenged but haven’t been stayed by any federal court.