Extending Its Stay, the 5th Circuit Says OSHA’s Vaccine Mandate Is ‘Fatally Flawed’

The U.S. Court of Appeals for the 5th Circuit has extended its stay on the Biden administration’s COVID-19 vaccine mandate for private employers, which the unanimous three-judge panel called “fatally flawed” and “staggeringly broad.” The stay, which the court issued on Friday evening, says OSHA shall “take no steps to implement or enforce the Mandate until further court order.” It is officially a preliminary pause “pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction.” But the court left little doubt that it would grant those motions, saying “petitioners’ challenges to the Mandate show a great likelihood of success on the merits.”

The appeals court was responding to several lawsuits challenging the vaccine mandate, including complaints by businesses, employees, and five states (Louisiana, Mississippi, South Carolina, Texas, and Utah), all of which are now consolidated under the heading BST Holdings v. OSHA. The 5th Circuit originally issued a stay on November 6, the day after the Occupational Safety and Health Administration (OSHA) published an “emergency temporary standard” (ETS) demanding that companies with 100 or more employees require them to be vaccinated against COVID-19 or wear face masks and undergo weekly testing. That stay said the ETS raised “grave statutory and constitutional issues,” which the new order, written by Judge Kurt Engelhardt and joined by Judges Edith Jones and Stuart Kyle Duncan, spells out in detail.

The court flatly states that the ETS “grossly exceeds OSHA’s statutory authority,” adding that the mandate “raises serious constitutional concerns.” It says the Occupational Safety and Health Act, the purported legal basis for the mandate, “was not—and likely could not be, under the Commerce Clause and nondelegation doctrine—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.”

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.” – READ MORE