[Rushtalk] Here Are the Arguments That Persuaded the 5th Circuit To Block OSHA's Vaccine Mandate for Private Employers

Carl Spitzer {C Juno} cwsiv at juno.com
Thu Nov 11 09:33:14 MST 2021

Here Are the Arguments That Persuaded the 5th Circuit To Block OSHA's
Vaccine Mandate for Private Employers

The appeals court said the rule, which was published on Friday, raises
"grave statutory and constitutional issues."

Jacob Sullum | 11.7.2021 5:05 PM 

( Felipe Caparros Cruz/Dreamstime.com) 
The U.S. Court of Appeals for the 5th Circuit yesterday stayed the Biden
administration's brand-new COVID-19 vaccine mandate for private
employers, which took effect on Friday, when it was published in
the Federal Register. The appeals court said the arguments made by the
petitioners—a Louisiana supermarket chain and six employees of a Texas
company that makes kitchen ventilation systems—"give cause to believe
there are grave statutory and constitutional issues with the Mandate."

The vaccine rule, which was announced in early September but was not
unveiled until last Thursday, gives businesses with 100 or more
employees two options: They can adopt a "mandatory vaccination policy"
with limited exceptions, or they can require unvaccinated employees to
wear face masks and undergo weekly COVID-19 testing. The White House
described the mandate as part of a broader effort to boost the
nationwide vaccination rate. The aim, it said, is to "reduce the number
of unvaccinated Americans by using regulatory powers and other actions
to substantially increase the number of Americans covered by vaccination

But the federal government has no general authority to protect public
health, control communicable diseases, or require vaccination, all of
which are primarily state responsibilities. The administration therefore
presented the vaccine mandate as an "emergency temporary standard" (ETS)
issued by the Occupational Safety and Health Administration (OSHA),
which is charged specifically with protecting employees from workplace
hazards. As the 5th Circuit indicated, that legal strategy leaves the
mandate open to challenge on both statutory and constitutional grounds.

The plaintiffs in BST Holdings v. OSHA, who are represented by the
Chicago-based Liberty Justice Center and Louisiana's Pelican Institute
for Public Policy, argue that the ETS exceeds the agency's authority
under the Occupational Safety and Health Act. Even if it didn't, they
say, empowering OSHA to issue such a sweeping order would exceed the
federal government's power to regulate interstate commerce and violate
the nondelegation doctrine, which constrains lawmaking by executive

The ETS option, which OSHA rarely uses, allows the agency to circumvent
the usual rule making process, which typically takes years, by imposing
regulations that take effect immediately upon publication. But to avoid
the public notice, comment, and hearing requirements that ordinarily
apply to OSHA rules, the agency has to identify a "grave danger" to
employees "from exposure to substances or agents determined to be toxic
or physically harmful or from new hazards." It also has to show the
emergency standard is "necessary to protect employees from such danger."

As a general matter, the plaintiffs in the 5th Circuit case argue, the
ETS goes beyond OSHA's mission to protect "occupational health and
safety" because "it is not related to the workplace." The agency "has
authority over workplace-related hazards," they say, "not any hazard one
might encounter anywhere in the world."

The plaintiffs' 5th Circuit brief notes that "OSHA has never attempted
to implement a rule this broad." Although the agency has been mulling an
"Infectious Diseases Regulatory Framework" covering "airborne infectious
diseases" since 2010, it "has repeatedly shelved the suggestion, leaving
it to languish on the agency's no-action agenda." The only previous OSHA
standard dealing with vaccination was much narrower, requiring that
"employers whose workers could be exposed to blood or other potentially
infectious materials at work offer free Hepatitis B vaccination to
employees." Even that standard did not require vaccination, and it did
not deal with a general, population-wide threat from a communicable

More specifically, the plaintiffs argue that "COVID-19 is not a toxic
substance or agent," adding that "OSHA cannot attempt to shoehorn this
disease into the phrase 'new hazards.'" That phrase, they say, should be
understood in context to exclude airborne viruses: "Because Congress
expressly allowed for an ETS to be issued for 'substances or agents
determined to be toxic or physically harmful,' the catch-all phrase to
encompass other hazards must be read in light of, and limited to, items
similar to those that come before it."

Otherwise, the brief says, OSHA "would have unbridled power to
promulgate any regulation that would have the arguable effect of
preventing the spread of a communicable disease." Such measures could
include "a shutdown of an entire
industry [such as meatpacking] that might harbor a high [incidence] of
COVID-19," "a nationwide shutdown of all employers engaged in interstate
commerce," "a nationwide mask mandate on all customers visiting
OSHA-regulated businesses," or even "a rule mandating [an] appropriate
regimen of vitamins" aimed at boosting employees' immune responses.

The Supreme Court has cautioned against assuming that Congress intended
to authorize executive actions with broad economic implications if it
did not explicitly say so. "When an agency claims to discover in a
long-extant statute an unheralded power to regulate a significant
portion of the American economy," the Court said in 2014, "we typically
greet its announcement with a measure of skepticism. We expect Congress
to speak clearly if it wishes to assign to an agency decisions of vast
'economic and political significance.'"

The plaintiffs' brief says OSHA's claim that it is responding to a
"grave danger" justifying an emergency standard is belied by the timing
of the ETS. The regulation was published nearly two years after the
beginning of the pandemic, nearly a year after the Food and Drug
Administration (FDA) first approved COVID-19 vaccines for "emergency
use," and more than two months after the FDA gave the Pfizer vaccine its
full approval. "The extended timeframe for the ETS undermines any claim
of exigence," the plaintiffs say. "And the real kicker is the same day
the ETS was released, November 4, the White House also announced it was
delaying its federal contractor vaccination mandate from December 8 to
January 4, again undermining its assertion of exigency." That is also
the deadline for private employers to fully comply with the ETS
published on Friday. The plaintiffs suggest that "truly 'grave dangers'
do not wait to spread until after the holidays."

The brief also questions whether the ETS for private employers is
"necessary" to protect against the threat posed by COVID-19. When OSHA
issued a COVID-19 ETS for the health care industry in June, the rule did
not include a vaccination requirement. "The fact that OSHA's previous
ETS, issued just months ago, did not find the need for a vaccine mandate
even for healthcare workers, who treat COVID-19 patients, undermines
OSHA's assertion now that such a requirement is necessary," the
plaintiffs say. They also note that OSHA supported in-person instruction
of public school students even when the vast majority of them were not
vaccinated, which suggests that other safeguards may suffice.

The brief argues that the new ETS is "underinclusive" because weekly
testing can miss COVID-19 carriers, because employees who are vaccinated
can still carry the virus but don't have to be tested or wear masks, and
because the rule does not apply to customers or other visitors who may
transmit COVID-19 in the workplace. At the same time, the plaintiffs
say, the rule is "overinclusive" because it "does not account for
vulnerability related to age or preexisting health conditions," because
it does not accept naturally acquired immunity as a valid reason to
forgo vaccination, and because, while the ETS "excuses remote and
outdoor workers from its scope," it "covers every other employee even
while acknowledging employees in different roles face vastly different
risk levels."

The brief says several of the individual plaintiffs "rarely interact
with colleagues in person and should not be required to vaccinate or
show a negative COVID-19 test since they are highly unlikely to spread
COVID-19 to colleagues they may only see a few times a year." And since
the ETS "applies to every workplace of an employer of 100 or more
employees," the plaintiffs say, it "does not consider the different
degrees of risk associated with differing workplaces." Yet "it cannot be
considered 'necessary' as to all such workplaces."

Even if Congress wanted to give OSHA the authority it claims, the
plaintiffs say, doing so would run afoul of the nondelegation doctrine,
which aims to preserve the separation of powers by requiring an
"intelligible principle" to guide regulation by executive agencies.
Under OSHA's reading of the law, the brief argues, the agency has
"plenary power to establish whatever legal requirements [it] wishes,
regardless of how attenuated" their relationship to workplace safety may
be. According to the government, "OSHA's newfound authority empowers it
not simply to set safe levels of potential carcinogens in the workplace,
or require safety equipment and employee trainings, but to regulate the
off-site medical decisions of employees completely disconnected from
work." If OSHA "can require that companies mandate vaccines," the brief
asks, "what can it not require?"

The plaintiffs also argue that Congress itself does not have the
authority to demand that private-sector employees choose between
vaccination and testing plus masking. According to the Supreme Court's
understanding of the Commerce Clause, the federal government can
regulate "activities having a substantial relation to interstate
commerce," even when those activities themselves do not cross state
lines. In deciding whether a given regulation meets that test, courts
are supposed to consider "the economic character of the intrastate
activity"; whether the regulation contains a "jurisdictional element"
that may "establish whether the enactment is in pursuance of Congress'
regulation of interstate commerce"; congressional findings regarding the
regulated activity's impact on interstate commerce; and whether that
impact is too "attenuated" for the regulation to pass muster under the
Commerce Clause.

In this case, the regulated "activity"—the decision to forgo vaccination
—is not only not "economic"; it is not even an "activity." The
plaintiffs argue that forgoing vaccination is analogous to refraining
from purchasing government-approved medical insurance, a decision that a
majority of the Court agreed could not be reached under the Commerce
Clause in the 2012 Obamacare case National Federation of Independent
Business v. Sebelius. "If Congress can regulate employees' individual
health decisions under the Commerce Clause," the plaintiffs say, "then
it can mandate that employers require their workers to attend the gym
weekly or to eat broccoli"—a reference to a famous hypothetical in the
Obamacare case.

What about a "jurisdictional element"? The plaintiffs' brief notes that
"the mandate's limit to employers with 100 or more employees does not
actually limit its reach to interstate activities," since "some
employers with more than 100 employees do not engage in interstate
activities at all," while "some employers with fewer than 100 employees
engage in extensive interstate activity."

Nor did OSHA (or Congress) "make any findings regarding the effect of
COVID-19 vaccinations and testing on interstate commerce." The agency's
avowed aim is to protect unvaccinated employees from the risk posed by
their own choice to remain unvaccinated. If those choices can be said to
affect interstate commerce, the plaintiffs say, it is only by "pil[ing]
inference upon inference," which the Supreme Court has said is not
permissible as a justification for federal regulation, since it would
"bid fair to convert congressional authority under the Commerce Clause
to a general police power of the sort retained by the States."

At this early stage in the case, it is not clear which of these
arguments the 5th Circuit found most persuasive, although the wording of
its stay implies that it perceives both statutory and constitutional
reasons to doubt the legality of OSHA's rule. The court gave the
government until 5 p.m. on Monday to "respond to the petitioners' motion
for a permanent injunction." The petitioners, in turn, "shall file any
reply" by 5 p.m. on Tuesday. 

The vaccine mandate faces additional challenges, including lawsuits
backed by the attorneys general of 26 states, in the 5th, 6th, 8th, and
11th circuits. Last week The New York Times reported that "legal experts
say" OSHA "has the authority to introduce a vaccine mandate." Judging
from the 5th Circuit's stay and all the other litigation contesting
OSHA's authority, that assessment seems premature.


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