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

Obtained from Reason.com

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."

The 5th Circuit notes that the statutory requirements for an ETS are difficult to satisfy. "In its fifty-year history, OSHA has issued just ten ETSs," Engelhardt writes. "Six were challenged in court; only one survived. The reason for the rarity of this form of emergency action is simple: courts and the Agency have agreed for generations that '[e]xtraordinary power is delivered to [OSHA] under the emergency provisions of the Occupational Safety and Health Act,' so '[t]hat power should be delicately exercised, and only in those emergency situations which require it.'"

OSHA's ETS "is anything but a 'delicate[] exercise[]' of this 'extraordinary power,'" the 5th Circuit says. "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."

The court thinks it is doubtful that the COVID-19 virus qualifies as a "toxic or physically harmful" substance or agent—a key point of contention in the government and petitioner briefs that preceded this ruling. The judges are also skeptical that the virus counts as a "new hazard." They say Texas made a "compelling argument" that the phrase should be understood in context to exclude airborne viruses.

"To avoid 'giving unintended breadth to the Acts of Congress,' courts 'rely on the principle of noscitur a sociis—a word is known by the company it keeps,'" Engelhardt writes. "Here, OSHA's attempt to shoehorn an airborne virus that is both widely present in society (and thus not particular to any workplace) and non-life-threatening to a vast majority of employees into a neighboring phrase connoting toxicity and poisonousness is [a] transparent stretch." He adds that "any argument OSHA may make that COVID-19 is a 'new hazard[]' would directly contradict OSHA's prior representation to the D.C. Circuit that '[t]here can be no dispute that COVID-19 is a recognized hazard.'"

That point aside, the 5th Circuit says, OSHA has failed to make the case that the 84 million workers covered by the ETS are actually "exposed" to the "grave danger" it perceives. The government argued that OSHA had met this test by presenting "myriad studies" of COVID-19 "clusters" and "outbreaks" in workplaces as "evidence of workplace transmission" and "exposure." That argument "misses the mark," Engelhardt writes, because "OSHA is required to make findings of exposure—or at least the presence of COVID-19—in all covered workplaces." He says OSHA "cannot possibly show that every workplace covered by the Mandate currently has COVID-positive employees, or that every industry covered by the Mandate has had or will have 'outbreaks.'"

Does COVID-19 pose a "grave danger" in all those settings? "The Mandate itself concedes that the effects of COVID-19 may range from 'mild' to 'critical,'" the court notes. It adds that the threat from COVID-19 depends on transmission trends, which have "varied since the President announced the general parameters of the Mandate in September," and the vaccination rate among employees. "For the more than seventy-eight percent of Americans aged 12 and older [who are] either fully or partially inoculated against it," Engelhardt writes, "the virus poses—the Administration assures us—little risk at all."

The court thinks OSHA's prior positions regarding communicable diseases "further belie the notion that COVID-19 poses the kind of emergency that allows OSHA to take the extreme measure of an ETS." The ETS, it says, "makes no serious attempt to explain why OSHA and the President himself were against vaccine mandates before they were for one here."

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