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November 15, 2021
OSHA vaccine, testing ETS indefinitely stayed

The Occupational Safety and Health Administration’s (OSHA) COVID-19 vaccination and testing emergency rule was indefinitely stayed by the U.S. Court of Appeals for the 5th Circuit in New Orleans on November 12. After issuing an initial stay on November 6, the three-judge panel reaffirmed its stay, instructing OSHA and the Department of Labor to take no steps to implement or enforce the emergency temporary standard (ETS) while the appeals court considers the petitioners’ request for a permanent injunction.

The judges suggested that the petitioners’ challenge to the ETS is likely to succeed.

On November 5, OSHA issued an ETS requiring employers with 100 or more employees to implement a program of COVID-19 vaccination or regular testing and face coverings to protect unvaccinated workers. The emergency rule also included a requirement for medical removal and isolation of workers testing positive for coronavirus infection.

While the Labor Department argued the ETS was necessary to mitigate the spread of COVID-19 in America’s workplaces, the appeals court suggested the administration, frustrated with levels of vaccine uptake, “pored over the U.S. Code in search of authority, or a ‘work-around,’ for imposing a national vaccine mandate. The vehicle it landed on was an OSHA ETS.”

They also characterized the ETS as “a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) …” rather than the narrow authority intended by Congress in the Occupational Safety and Health (OSH) Act. They questioned the necessity of an emergency rule, citing a handful of hypothetical workers, including a 28-year-old truck driver alone in his cab—who may be less vulnerable to COVID-19 than a 62-year-old prison janitor—and a naturally immune unvaccinated worker, who presumably has a lower risk of infection than an unvaccinated worker who has never had the virus. The agency makes no exception for natural immunity acquired due to earlier infections.

The judges wrote that a lawful ETS would need to show that employees covered by the rule are, in fact, exposed to a hazard. They also pointed out that OSHA had argued in June 2020 in the D.C. Circuit that an ETS was not necessary to protect workers from infectious diseases, including COVID-19.

The judges expressed doubt that OSHA’s emergency rulemaking authority under the OSH Act was intended to be used as a public health tool. They also characterized the ETS as “overinclusive,” applying across industries without regard to actual workplace risks, and “underinclusive,” applying only to employers of 100 or more employees.

The judges pointed out that OSHA has issued only 10 ETSs in the agency’s 50-year history. Of the 6 challenged in federal courts, only 1 survived legal challenge.

ETSs issued under OSHA’s emergency rulemaking authority must pass a 2-part test: evidence of a grave workplace danger and the need for a temporary rule. The judges questioned whether COVID-19 qualifies as a grave workplace danger because effects can range from mild to critical.

The petitioners argued in their court filing that the ETS exceeds OSHA’s authority under the OSH Act, exceeds Congress’s authority under the Interstate Commerce Clause of the U.S. Constitution, and exceeds Congress’s authority under the nondelegation doctrine.

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