Fifth Circuit blocks OSHA vaccination and testing mandate


A three-judge panel for the U.S. Court of Appeals for the Fifth Circuit on November 12 permanently blocked implementation of the Occupational Health and Safety Administration’s (OSHA) emergency temporary standard requiring businesses with more than 100 employees to vaccinate their workers against COVID-19.

A few days earlier, on November 6, the Fifth Circuit issued an emergency stay against the emergency temporary standard (ETS). That decision was made pending expedited judicial review of the rule. The Fifth Circuit issued its second ruling and reaffirmed its initial stay after it conducted judicial review.

In its order, the Fifth Circuit wrote that it was a “dubious assumption” that the vaccination requirement in the rule would pass “Constitutional muster.” Though the court did not ultimately decide the ETS’ constitutionally, it called the rule “fatally flawed on its own terms.” 

The court noted that OSHA was not created to “make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways.” It further noted that, because of the Commerce Clause and nondelegation doctrine, OSHA likely could never wield such power. 

The court found the mandate “likely exceeds the federal government’s authority under the Commerce Clause because it regulates noneconomic activity that falls squarely within the States’ police power.” 

In considering whether the ETS was necessary, the court called the mandate “staggeringly overbroad” and said it fails to consider that the “the ongoing threat of COVID-19 is more dangerous to some employees than to other employees.”

At the same time, the court called the mandate “underinclusive” because it offers none of the protection from the dangers of COVID-19, the threat of which OSHA says make the mandate necessary to protect workplace safety, to businesses that employ 99 people or fewer.

“Indeed, underinclusiveness of this sort is often regarded as a telltale sign that the government’s interest in enacting a liberty-restraining pronouncement is not in fact ‘compelling,’” the Fifth Circuit wrote in its stay.

While declining petitioners’ request for a stay would do them harm, the court found, a stay does no harm to OSHA.

“Any interest OSHA may claim in enforcing an unlawful (and likely unconstitutional) ETS is illegitimate. Moreover, any abstract ‘harm’ a stay might cause the Agency pales in comparison and importance to the harms the absence of a stay threatens to cause countless individuals and companies,” the court wrote in its ruling.

The Fifth Circuit’s order concludes by ordering OSHA to take no steps to implement or enforce the mandate “until further court order.”

However, judicial review of the ETS will continue. Because multiple challenges to the rule were filed in several different federal circuit courts, those challenges will be consolidated and submitted in a blind lottery that will ultimately decide which circuit court hears challenges to OSHA’s rule.

If the Fifth Circuit does not win that lottery, which will be conducted by the U.S. Judicial Panel on Multidistrict Litigation, another appeals court will be responsible for issuing further decisions, and could lift the current stay.


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