WCI, Inc
Nov. 10, 2021

Temporary stay of the private employers' vaccine mandate

In a brief order, the Fifth Circuit Court of Appeals has entered a temporary stay of OSHA’s November 5 interim final rule establishing an emergency temporary standard (ETS) requiring that private employers with at least 100 employees adopt a plan requiring that all employees be vaccinated for COVID-19, or instead undergo at least weekly testing and wear a face covering. Citing “cause to believe there are grave statutory and constitutional issues” with the Biden Administration’s vaccine mandate, the court stayed the ETS pending further action.

The order comes in response to a November 5 motion to stay the ETS that was filed by a group of businesses and the states of Louisiana, Mississippi, South Carolina, Texas, and Utah.

The court put the case on a fast tract, ordering the federal government to respond to the petitioners’ motion for a permanent injunction by 5:00 PM on November 8. The petitioners must file any reply by 5:00 PM on November 9.

ETS exceeds legal authority. The petitioners contend with the ETS, the Biden Administration is trying “to leverage the COVID-19 pandemic into a justification to reconfigure massive sectors of the American economy.” The ETS, however, runs afoul of the U.S. Constitution, the limits of the Administration’s statutory authority, and the principles of administrative law, as the petitioners see it.

OSHA’s limited authority. According to the petitioners, OSHA lacks the authority to issue the ETS because it is an occupational safety agency with limited jurisdiction that is charged with protecting workers from exposure to dangerous workplace substances like asbestos. OSHA is not a public health agency with wide-ranging authority to address communicable diseases through regulation, the petitioners said. If Congress were to delegate this kind of extraordinary authority to an administrative body, it would do so very explicitly. “But Congress, which lacks a general police power, has never mandated mass vaccination,” the motion for temporary stay argues.

Among other things, the petitioners argue that even if OSHA had authority to regulate the spread of communicable diseases, the measures it has employed with its ETS are unlawful. An ETS under the OSH Act, 29 U.S.C. Section 655(c), doubles as a “proposed rule” for a traditional standard under Section 655(b), and thus must be consistent with the substantive limitations on standards under Section 655(b). The petitioners assert that Section 655(b)(7) limits the substantive measures that OSHA may prescribe when issuing a standard, to:

1. “prescrib[ing] the use of labels or other appropriate forms of warning;”

2. “prescrib[ing] suitable protective equipment and control or technological procedures . . . for monitoring or measuring employee exposure;” and

3. “prescrib[ing] the type and frequency of medical examinations or other tests which shall be made available . . . to employees exposed to such hazards in order to most effectively determine whether the health of such employees is adversely affected by such exposure.”

However, none of these provisions confers on OSHA the power to require any form of medical treatment, much less to mandate vaccination, the petitioners argue.

Administrative law principles. Turning to “fundamental administrative law principles,” the petitioners contend that President Biden violated such principles because he wanted to increase vaccinations and ordered OSHA to create a novel “work-around” of federal law. Here, the petitioners rely in part on a statement made by White House Chief of Staff Ron Klain. OSHA has also purportedly reversed course on its previously stated positions that (1) vaccine mandates are bad policy and less effective than voluntary vaccination, and (2) the agency lacks authority to issue an ETS regulating entire classes of infectious diseases on an emergency basis.

Further, the ETS also fails because of its arbitrary and capricious treatment of several relevant decisional factors, according to the petitioners’ motion.

Balance of harms. As to the balance of harms, the ETS will inflict irreparable fiscal and other harm to the petitioners as they await the Fifth Circuit’s consideration of their petition to review the emergency standard, the petitioners argue. On the other hand, the federal government allegedly will suffer no harm from maintaining the status quo, which they purportedly admitted only months ago was the only lawful state of affairs.

The petitioners thus asked the appeals court to stay the ETS pending adjudication of their petition for review and toll all ETS compliance deadlines.

Source: Written by Pamela Wolf, J.D.

From WCI's HR Answers Now ©2021 CCH Incorporated and its affiliates. All rights reserved.

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