VACCINATION MANDATES: BLOG SERIES PART 6
Last Monday we wrote about the Emergency Stay issued by the United States Court of Appeals for the Fifth Circuit enjoining OSHA’s emergency temporary standard (ETS) creating a vaccine mandate for all employers with 100 or more employees. The Emergency Stay issued by the 5th Circuit was only temporary to allow OSHA time to respond to the Petition. OSHA has responded and the 5th Circuit, in a strongly worded Opinion, has now extended the Stay through a full merits based review (https://www.ca5.uscourts.gov/opinions/pub/21/21-60845-CV0.pdf.) As such, unless the Supreme Court reverses the Stay, it is highly unlikely that the vaccine mandate will go into effect as of December 5, 2021 and if the 5th Circuit is correct, it may never go into effect.
The 5th Circuit took OSHA and the Biden Administration to task for a number of problems with the ETS. First, without deciding the issue, the 5th Circuit cast serious doubt on whether OSHA has either the constitutional power or statutory power to invoke such a broad rule on society. The 5th Circuit expressed serious reservations as to whether the federal bureaucracy and not Congress could create such an overarching mandate of public health policy. The Court also expressed misgivings that COVID poses the kind of “grave danger” that permits OSHA to act on an emergency basis. The 5th Circuit reasoned that although some people may be grievously impacted by COVID, OSHA acknowledged that many others exposed by the virus only feel “mild” effects. As such, the Court did not believe OSHA had the authority to act on an emergency basis as COVID is not the kind of workplace danger that falls under OSHA’s normal jurisdiction.
The primary basis for the 5th Circuit’s stay was that the mandate imposed by the ETS is remarkably both “overbroad” and “underinclusive.” The ETS is overbroad because there was no individualized inquiry to determine whether COVID is a threat to all employees. The Court noted the differences between a 28 year old truck driver who spends the bulk of his workday alone and a 62 year old prison janitor who is exposed to a multitude of people. As for under inclusiveness, the Court was hard pressed to understand other than for administrative ease, why employers with 99 employees do not have to mandate vaccinations and employers with 100 employees do. Finally, the 5th Circuit cast serious doubt on whether a real emergency exists because OSHA determined in June 2020 that an ETS was unnecessary and continued to drag their feet even after President Biden urged the implementation of this mandate.
In a succinct concurring opinion, Judge Duncan stated of the mandate: “[w]hether Congress could enact such a sweeping mandate under its interstate commerce power would pose a hard question. Whether OSHA can do so does not.”
The issue of the validity of the ETS will eventually work its way up to the Supreme Court. Until a final determination is made by the Supreme Court, however, it is unclear whether employers will have to adhere to the ETS (as currently drafted). As such, while the Stay remains in effect, employers may proceed with preparing for the ETS, but not officially implementing any provisions of the ETS unless choosing to do so voluntarily.
For questions about how this might affect your workplace or any other labor and employment law topic, please do not hesitate to contact the attorneys at Hoffman & Hlavac. To stay updated on key labor and employment law developments that affect your workplace, be sure to subscribe to our blog and follow us on social media.