When is an emergency not an emergency? 5th Circuit Orders a Halt of OSHA Emergency Vaccine and Testing Mandate

Conservative judges and law professors eagerly warned of the dangers of "nationwide injunctions" as District and Circuit judges took literally the commands of the Asylum Act and enforced the law during the Trump years.  But now that the shoe is on the other foot we can expect wide acclaim for the 5th Circuit's broad attack on the Biden administration's mandate that employers of over 100 must implement a vaccine or covid testng requirement.

The Occupational Health and Safety Administration is authorized by statute to issue emergency temporary standards if it "determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.” 29 U.S.C. § 655(c)(1)

The once in a century world wide pandemic has already claimed a conservatively estimated 750,000 lives in our country alone.  On January 21, 2021 the President issued an Executive Order directing OSHA to consider Emergency measures to protect workers.  After study - including consultation with the Centers for Disease Control, the National Institute of Occupational Safety and Health a health care workers Emergency Temporary Standard (ETS) was issued in June.  Further study led the Department of Labor to issue on November 5, 2021 a Rule - an Emergency Temporary Standard that compels large employers to implement a covid vaccination or testing requirement.

The Fifth Circuit has nominally stayed the emergency Rule - but effectively granted a nationwide preliminary injunction.  Unlike Trump administration 'emergency' actions bypassing the Asylum Act, which met with favor by the Supreme Court, the Circuit here viewed the order the way that the Department of Health and Human Services eviction moratorium was treated last month. It met with rejection by the United States Supreme Court as overreach in Alabama Association of Realtors.  

The Supreme Court majority there 6-3 enjoined the carefully drawn moratorium.  Now that they hold the whip hand with a solid majority hostile to the administrative state the Supreme Court, declaring itself a super-legislative ombudsman,  declared "We expect Congress to speak clearly when authorizing an agency to exercise powers of “vast ‘economic and political significance.’".  Finding the Public Health Act inadequate it enjoined the moratorium order.  Goodbye to the old conservative denunciations of `activist judges', and goodbye to the deference to vaccine mandates first upheld in the 1905 smallpox vaccine case Jacobson v. Massachusetts.  That was then and this is now.

- GWC

BSTHoldings v OSHA  5th Circuit, November 12, 2021

***The statute empowering OSHA allows OSHA to bypass typical notice-and-comment proceedings for six months by providing “for an emergency temporary standard to take immediate effect upon publication in the Federal Register” if it “determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.” 29 U.S.C. § 655(c)(1). As the name suggests, emergency temporary standards “are an ‘unusual response’ to ‘exceptional circumstances.’” Int’l Chem. Workers, 830 F.2d at 371 (quoting Pub. Citizen Health Rsch. Grp. v. Auchter, 702 F.2d 1150, 1155 (D.C. Cir. 1983)). 

Thus, courts 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.’” Id. at 370 (quoting Pub. Citizen, 702 F.2d at 1155).14 But the Mandate at issue here is anything but a “delicate[] exercise[]” of this “extraordinary power.” Cf. Pub. Citizen, 702 F.2d at 1155. 

Quite the opposite, 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***

Stuart Kyle Duncan, Circuit Judge, concurring: 

***In addition to the many reasons ably identified by Judge Engelhardt’s opinion, I underscore one reason why these challenges to OSHA’s unprecedented mandate are virtually certain to succeed. Courts “expect Congress to speak clearly when authorizing an agency to exercise powers of ‘vast economic and political significance.’” Ala. Ass’n of Realtors v. Dep’t of Health & Human Servs., 141 S. Ct. 2485, 2489 (2021) (quoting Utility Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)). OSHA’s rule reaches “two-thirds of all private-sector workers in the nation.”86 Fed. Reg. 61,402, 61,403 (Nov. 5, 2021). 

It compels covered employers to (1) make employees get vaccinated or get weekly tests at their expense and wear masks; (2) “remove” non-complying employees; (3) pay per-violation fines; and (4) keep records of employee vaccination or testing status. 86 Fed. Reg. at 61,402–03, 61,551–54; 29 U.S.C. § 666. OSHA invokes no statute expressly authorizing the rule. Instead, OSHA issued it under an emergency provision addressing workplace “substances,” “agents,” or “hazards” that it has used only ten times in the last 50 years and never to mandate vaccines. 86 Fed. Reg. at 61,403; see 29 U.S.C. § 655(c)(1).