After The Fifth Circuit Court of Appeals ruled Friday to keep its stay of the Occupational Safety and Health Administration’s (OSHA) emergency rule that would require employers of more than 100 employees to mandate COVID-19 vaccines in place, the federal agency says that it will no longer pursue private sector vaccine mandates at this time.
“On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) (“ETS”),” OSHA said in a statement. “The court ordered that OSHA ‘take no steps to implement or enforce’ the ETS ‘until further court order.’ While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”
The Star News Network reported use of ETS’s is extremely rare. Since Congress granted ETS authority in 1970, only 11 have been filed. Almost all of them were rejected by courts or went unchallenged.
The ones that were upheld involved dangerous “substances” or “hazards” that were so dangerous, OSHA needed the latitude to act without going through the requisite rule-making procedures that guide federal government agencies, including a public comment period before the rule takes effect.
A virus, the court ruled, is not a “substance” or “hazard” that requires such urgent action.
The Fifth Circuit ruled that even though ETSs are sometimes warranted, OSHA had violated the 1950 Administrative Procedures Act with this particular order, and affirmed the lower court’s stay.
In a 22 page opinion, the Fifth Circuit wrote:
The Occupational Safety and Health Administration (OSHA) “reasonably determined” in June 2020 that an emergency temporary standard (ETS) was “not necessary” to “protect working people from occupational exposure to infectious disease, including COVID-19.” In re AFL-CIO, 2020 WL 3125324, at *1 (D.C. Cir. June 11, 2020). This was not the first time OSHA had done this; it has refused several times to issue ETSs despite legal action urging it do so. See, e.g., In re Int’l Chem. Workers Union, 830 F.2d 369 (D.C. Cir. 1987) (per curiam). In fact, in its fifty-year history, OSHA has issued just ten ETSs. 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.” Fla. Peach Growers Ass’n v. U.S. Dep’t of Lab., 489 F.2d 120, 129– 30 (5th Cir. 1974).
This case concerns OSHA’s most recent ETS—the Agency’s November 5, 2021 Emergency Temporary Standard (the “Mandate”) requiring employees of covered employers to undergo COVID-19
vaccination or take weekly COVID-19 tests and wear a mask. An array of petitioners seeks a stay barring OSHA from enforcing the Mandate during the pendency of judicial review. On November 6, 2021, we agreed to stay the Mandate pending briefing and expedited judicial review.
Having conducted that expedited review, we reaffirm our initial stay.
Judge Kurt D. Engelhardt (pictured above) noted that OSHA’s attempted ETS usage “runs afoul of the statute from which it draws its power and, likely, violates the constitutional structure that safeguards our collective liberty.”
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Pete D’Abrosca is a contributor at The Tennessee Star and The Star News Network. Follow Pete on Twitter. Email tips to [email protected].
Photo “Kurt D. Engelhardt” by The Federalist Society.