5th Circuit Affirms Its Stay of the OSHA ETS Vaccine Mandate

Alerts / November 15, 2021

The U.S. Fifth Circuit Court of Appeals has reaffirmed its Nov. 6 stay of the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) vaccine mandate. The Court ordered that enforcement of the mandate was stayed indefinitely pending adequate judicial review of the petitioner’s motion for permanent injunction.

The Court’s opinion describes the vaccine mandate as fatally flawed on its own terms. Thus, the Court did not need to weigh in on what it termed the vaccine mandate’s dubious constitutionality. The Court determined that the vaccine mandate is an extraordinary power that, in order to be lawful, must be “delicately exercised.” Instead, in the Court’s words, the vaccine mandate is a “one-size-fits-all sledgehammer” and not a “delicately handled scalpel.” The Court determined that, as a hallmark of unlawful agency action, the vaccine mandate fails to explain how a current emergency exists now even though both OSHA and the President were against vaccine mandates earlier in the pandemic.

The Court opined that the vaccine mandate is the rare law that is both over- and underinclusive at the same time. For example, the vaccine mandate is overinclusive (i.e., a one-size-fits-all sledgehammer) because it does not account for the commonsense differences in workplace risks demonstrating that not all workplaces pose a “grave danger.” The Court determined that the vaccine mandate’s sledgehammer approach results in treating different risks the same and was thus overinclusive. At the same time, the Court found the vaccine mandate underinclusive because, if there is truly an “emergency,” the same risks exist for a workforce of 99 (not covered by the mandate) as for a workforce of 100 (covered by the mandate). Moreover, the Court noted an unexplained failure by OSHA to find an “emergency” previously during a nearly two-year global pandemic. What the Court did not do, unfortunately, is clarify whether the stay applies nationwide or just within the Fifth Circuit (i.e., Louisiana, Mississippi and Texas). Nevertheless, based on the nationwide breadth of the litigants’ requested stay, and the Court’s order granting it, we believe that OSHA is effectively prohibited from doing anything to enforce the ETS nationwide.

Similar challenges to the vaccine mandate, however, are pending in the majority of Circuits. These cases, along with the Fifth Circuit case, will be consolidated before one Circuit for further proceedings early next week. At that time, the stay could be clarified, continued or withdrawn. For now, employers should continue preparations for compliance with the deadlines in the OSHA ETS while keeping a close eye on new developments as the case(s) move forward.

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