On November 6, 2021, reported on the temporary stay of the Biden employer vaccine mandate issued under the purported authority of the Occupational Safety and Health Administration (OSHA), 5th Circuit Appeals Ct Halts Biden Employer Vaccine Mandate “Pending Further Action By This Court:
The Biden administration has imposed a vaccine mandate on all companies with over 100 employees, originally due to start in December now pushed back to January.The mandate was accomplished through an OSHA Emergency Temporary Standard, which arguably is beyond OSHA’s authority. Because the issue is an agency action, a group of plaintiffs invoked a federal appeals court rule that allows an application for a stay of agency action directly in the Court of Appeals.You can read the Motion for a Stay and Motion for Expedited Consideration, filed on November 5, 2021, in the 5th Circuit Court of Appeals….The Court just issued an emergency stay pending an expedited briefing schedule ….
That briefing concluded, and the 5th Circuit today issued its Order putting a longer-term hold on the mandate pending consideration of a permanent injunction.
The Opinion started by noting how rare the procedure used by OSHA was:
The Occupational Safety and Health Administration (OSHA) “reasonably determined” in June 2020 that an emergency temporary standard (ETS) was “not necessary” to “protect working people from occupational exposure to infectious disease, including COVID-19.” … This was not the first time OSHA had done this; it has refused several times to issue ETSs despite legal action urging it do so…. In fact, in its fifty-year history, OSHA has issued just ten ETSs.1 Six were challenged in court; only onesurvived.2 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.” Fla. Peach Growers Ass’n v. U.S. Dep’t of Lab., 489 F.2d 120, 129–30 (5th Cir. 1974).This case concerns OSHA’s most recent ETS—the Agency’s November 5, 2021 Emergency Temporary Standard (the “Mandate”) requiring employees of covered employers to undergo COVID-19 vaccination or take weekly COVID-19 tests and wear a mask.3 An array of petitioners seeks a stay barring OSHA from enforcing the Mandate during the pendency of judicial review. On November 6, 2021, we agreed to stay the Mandate pending briefing and expedited judicial review. Having conducted that expedited review, we reaffirm our initial stay.
Here’s the key portions of the Opinion:
We first consider whether the petitioners’ challenges to the Mandate are likely to succeed on the merits. For a multitude of reasons, they are.We begin by stating the obvious. The Occupational Safety and HealthAct, which created OSHA, was enacted by Congress to assure Americans “safe and healthful working conditions and to preserve our human resources.” See 29 U.S.C. § 651 (statement of findings and declaration of purpose and policy). It was not—and likely could not be, under the Commerce Clause and nondelegation doctrine8—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….On the dubious assumption that the Mandate does pass constitutional muster—which we need not decide today9—it is nonetheless fatally flawed on its own terms. Indeed, the Mandate’s strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (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 facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (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 Mandate’s stated impetus—a purported “emergency” that the entire globe has now endured for nearly two years,10 and which OSHA itself spent nearly two months responding to11—is unavailing as well. And its promulgation grossly exceeds OSHA’s statutory authority.***For similar reasons, a stay is firmly in the public interest. From economic uncertainty to workplace strife, the mere specter of the Mandate has contributed to untold economic upheaval in recent months. Of course, the principles at stake when it comes to the Mandate are not reducible to dollars and cents. The public interest is also served by maintaining our constitutional structure and maintaining the liberty of individuals to make intensely personal decisions according to their own convictions—even, or perhaps particularly, when those decisions frustrate government official….For these reasons, the petitioners’ motion for a stay pending review is GRANTED. Enforcement of the Occupational Safety and Health Administration’s “COVID-19 Vaccination and Testing; Emergency Temporary Standard”22 remains STAYED pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction.23In addition, IT IS FURTHER ORDERED that OSHA take no steps to implement or enforce the Mandate until further court order.
Don’t be surprised if the Biden administration seeks a way around this, likely asking the full 5th Circuit to reconsider the decision, or going to the U.S. Supreme Court. Neither maneuver is likely to succeed. OSHA has no authority to do what Biden wants.
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