Federal appeals courts recently issued two decisions impacting federal COVID-19 vaccine requirements mandated by President Joe Biden earlier this year.
Reversing a decision made by the U.S. Court of Appeals for the Fifth Circuit, the U.S. Court of Appeals for the Sixth Sixth Circuit on December 15 dissolved the stay preventing the Occupational Health and Safety Administration (OSHA) from implementing its Emergency Temporary Standard (ETS), which requires all employers with 100 or more employees to vaccinate their workers against COVID-19 or implement weekly testing. Unvaccinated employees must also wear a mask in the workplace.
The Sixth Circuit denied an en banc review of the case and the decision was made by a three judge-panel, which voted 2-1 to lift the stay.
Writing the majority opinion, Judge Jane Stranch disagreed with the Fifth Circuit’s conclusion that OSHA likely did not have the constitutional authority to implement the ETS and that the mandate was overbroad.
Stranch also rejected the Fifth Circuit’s invocation of the major questions doctrine, a seldom used legal doctrine the court invokes so as not to give deference to regulatory agencies to interpret statutory provisions when a case involves high-profile political or economic issues that could result in an agency’s regulatory authority being significantly transformed or expanded.
The Fifth Circuit argued that OSHA’s power to implement the ETS came from a novel interpretation of an old statute and the Congress has not clearly expressed its intent to give OSHA broad authority to implement the policy. Because of this, the Fifth Court argued, the major questions doctrine applies.
But Stranch disagreed, arguing that OSHA has regulated workplace health and safety, including by trying to control the spread of disease, before and the ETS is not a “novel expansion of OSHA’s power; it is an existing application of authority to a novel and dangerous worldwide pandemic.”
Judge Joan Larsen wrote the only dissenting opinion. Larsen agreed that the ETS oversteps OSHA’s statutory authority and took issue with the majority’s conclusion that the major questions doctrine does not apply to the case.
Larsen also took issue with OSHA’s stated goal of making the testing opt-out to the rule “less palatable” to employers and employees than becoming vaccinated.
Shortly after the ruling, OSHA updated the date by which companies must come into compliance with the ETS, moving the date from January 4 to January 10. The agency says it will not issue citations for noncompliance prior to January 10. Employers will also not receive a citation for not complying with the ETS weekly testing requirement for those who opt out of the vaccine before February 9, so long as they are making “reasonable, good faith efforts to come into compliance with the standard.”
Immediately after the Sixth Circuit’s ruling, multiple plaintiffs filed an emergency application for an immediate stay of the ETS with the Supreme Court. Justice Brett Kavanaugh, who is assigned the review of Sixth Circuit petitions, could grant the stay pending review by the entire court. He could also refer the application to the full court for a decision or decide not to take any action until the full court reviews the case.
Also on December 15, the Fifth Circuit partially stayed a preliminary injunction preventing the Centers for Medicare and Medicaid Services (CMS) from enforcing a COVID-19 vaccination mandate for healthcare providers, also part of the Biden administration’s federal vaccine rules.
The injunction remains in place in 25 states, which are plaintiffs in the lawsuit and was lifted in 25 states, including Maine, plus the District of Columbia, that are not involved in the case.
The nationwide injunction was initially put in place by the Louisiana District Court on November 30.
The Fifth Circuit considered four factors in considering the request to stay the preliminary injunction: whether the applicant for the stay had shown the case is likely to succeed on the merits, whether the applicant will be irreparably injured without the stay, whether the stay would substantially injure the other parties, and where public interest lies.
The first question, whether the case is likely to succeed on the merits, also involved the major questions doctrine.
The district court concluded that CMS was entering the “vaccine regulatory space for the first time,” which invoked the major questions doctrine. In its ruling, the Fifth Circuit called this “not so much a new doctrine but a new label for courts’ method of analyzing federal agencies’ novel assertions of authority.”
The Fifth Circuit also acknowledged the role the major questions doctrine had played in its ruling on the OSHA mandate and noted that Health and Human Services Secretary Xavier Becerra identifies “meaningful distinctions” between the CMS and OSHA rules, which have different statutory authorities. The Fifth Circuit said Becerra has not made “a strong showing of likely success on the merits.”
The court found that the other three factors it considered, “are important but, regardless of the outcome of analyzing them, they will not overcome our holding that the merits of the injunction will not likely be disturbed on appeal.”
While the court decided to leave the preliminary injunction in place in states involved in the suit, it found the district court gave “little justification for issuing an injunction” in states not involved in the suit.
It found the district court’s argument that a nationwide mandate was necessary because of a need for uniformity to be unconvincing, and quoted Supreme Court Justice Neil Gorsuch, who recently criticized the frequent use of nationwide injunctions by lower courts.
