This article about the Court of Appeals stay of President Biden’s OSHA COVID vaccine mandate was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.
Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease. She is also a member of the Vaccines Working Group on Ethics and Policy.
On November 6, 2021, the US Fifth Circuit Court of Appeals stayed President Biden’s Emergency Temporary Standard (ETS) – the emergency temporary standard by which OSHA required large employers to adopt a COVID-19 vaccine or test mandate – citing grave constitutional and statutory concerns.
On November 12, 2021, the Fifth Circuit published a decision keeping in place its stay and elaborating on the reasons. The decision is concerning — first, the legal analysis does not follow established law in several ways, and the innovations (or misapplications) are not well reasoned. Second, the decision suggests a lack of close reading of the Emergency Temporary Standard the decision is putting on hold. And third, and perhaps most concerning, the decision suggests the panel attributes little to no importance to halting COVID-19, or to the fact that over a thousand people in the United States are dying from COVID-19 every day, or to the fact that the ETS is estimated to save thousands of workers lives and prevent a quarter of a million hospitalizations, under conservative assumptions.
All of these give cause for concern if the Fifth Circuit is the one chosen under the lottery to hear the cases against the mandate. A panel that clearly ascribes little importance to protecting employees from COVID-19 is unlikely to consider the need for a mandate carefully.
To be clear, the bar for putting out an ETS is high. Another panel may end up not upholding the ETS for not meeting that high bar, and that would be well within the lines of existing jurisprudence. But this decision isn’t it.
ETS – the OSHA COVID-19 vaccine mandate
On November 5, 2021, the Biden administration published its long-anticipated Emergency Temporary Standard requiring employers to adopt a vaccinate and test program. The ETS had been long anticipated because President Biden announced it in September. Unsurprisingly, since this was also announced, a flurry of lawsuits followed.
In brief, the ETS requires employers with over 100 employees to adopt a plan requiring unvaccinated employees to submit to weekly testing. The ETS expressly does not require employers to pay for testing, though state or other standards might, and part of that is to incentivize employees to choose the safer option and vaccinate. The ETS will require unvaccinated employees to use face coverings even in states where that is not generally required. The ETS does not apply to employees who do not work indoor with others (like coworkers or customers), who work remotely, or who work exclusively outdoors.
This decision does not open with the risks of the COVID-19 pandemic, or any concern about its effects. It starts with setting out Occupational Safety and Health Administration‘s (OSHA) June 2020 statement – before the vaccines were available, before the delta variant was identified, and before we had much information about the pandemic — that an ETS was “not necessary” to “protect working people from occupational exposure to infectious disease, including COVID-19.”
It then explains that in its entire history, OSHA has only issued ten emergency temporary standards, and of the six of them challenged in court, only one survived. This sets up the decision to strike down the mandate. This start already indicated where the panel is inclined to go. A decision setting out to uphold would likely have started by emphasizing the emergency the pandemic caused.
The decision points out, accurately, that debates around the ETS started before its publication, on the announcement. Then it describes the ETS as requiring “all employers of 100 or more employees to “develop, implement, and enforce a mandatory COVID-19 vaccination policy” and require any workers who remain unvaccinated to “undergo [weekly] COVID-19 testing and wear a face covering at work in lieu of vaccination.” This language is citing the ETS’s summary, but that summary does not capture the broad exceptions that are described later in the ETS.
The decision reasonably points out that the private employers among the petitioners have the standing to challenge the mandate: standing requires meeting a number of criteria, including a personal stake — and private employers who would be required to implement the ETS’s requirement clearly have a personal stake.
In deciding whether to grant a stay, federal courts consider four issues:
- Whether the people requesting the stay showed that they are “likely to succeed on the merits,” – whether they have a strong case.
- Whether the people requesting the stay will be “irreparably injured” without a stay.
- Whether the stay will “substantially injure” other parties.
- Where the public interest lies.
The court opens by setting out why they think petitioners have a good chance of succeeding. Already, here, the judges set out the constitutional issue, stating that the Act creating OSHA “was not — and likely could not be, under the Commerce Clause and nondelegation doctrine — intended to authorize a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways.”
This sets out the Court’s view of the issue. It does not accept the ETS as targeted at the workplace, but as targeted at public health more broadly. To some degree, of course, the court is right – the OSHA vaccine mandate is part of President Biden’s COVID-19 plan, designed as part of a plan to protect the United States from a disease that has already killed over 700,000 Americans.
But in another sense, this framing is problematic. The fact that COVID-19 has implications beyond the workplace does not mean it is not a workplace hazard. People spend long hours, large parts of their day in the workplace, and we know quite a few workers did contract COVID-19 on the job — and quite a few died from it. COVID-19 was a major cause of death for police officers, workers in meatpacking plants, educators, and retail workers, to name a few. In pp. 37-50 the ETS, the ETS provides extensive evidence showing deaths and harms in the workplace (the ETS does not itself have page numbers; I downloaded it as a PDF, and these pages refer to that. It’s the section titled “a. General Impact on Workers.).
The ETS itself is the part of the plan that is aimed at the workplace, and it does directly address workplace safety — after all, people spend large parts of their day in workplaces, and contracting COVID-19 in the workplace can kill and harm workers. The existence of a broader issue does not, by itself, make this less of a potential workplace safety concern.
For a more thorough discussion of why the decision does not correctly reflect OSHA’s role and its powers, see OSHA expert Jordan Barab’s thorough analysis: I come in as someone who works on public health and administrative law generally.
Although the Court suggests it does not need to decide the constitutional issues “today”, it does address them, and since it set them up early, I’ll address them here, before moving to the other issues. The decision addressed the constitutional issues from p. 16 to the decision and on.
First, it claimed that the mandate “likely exceeds the federal government’s authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the States’ police power. A person’s choice to remain unvaccinated and forgo regular testing is noneconomic inactivity.” The Court here cites NFIB v. Sebelius.
This is a strange use of that case. In NFIB v. Sebelius, a majority of the Supreme Court found that the individual mandate under the Affordable Care Act went beyond the powers given to Congress in the Commerce Clause because it required individuals to participate in the market by buying health insurance — requires them to step into interstate commerce when they did not want to act.
But this is not that situation. In this case, workers are already engaged in working for business; OSHA just sets the safety work conditions for the business. Workers are not asked to step into interstate commerce; they are already in it. If the commerce clause does not allow OSHA to impose workplace requirements for safety, it does not allow it to impose any workplace requirement.
Why is requiring handwashing or wearing a hard hat different from making a vaccine or test requirement required for work? The court’s approach would negate any workplace regulation. And it’s not in line with our commerce clause jurisprudence. NFIB v. Sebelius did not say – or suggest – that Congress cannot regulate existing action in interstate commerce under the commerce clause. Under this reading, a lot of requirements that cover interstate commerce – like regulating trucking on anything that is not purely economic – would not stand.
The Court then points out — correctly — that vaccines mandates are traditionally and historically state issues. That is right. But it does not mean that Congress or the Administration cannot impose vaccine mandates on areas under their jurisdiction – like international or interstate travel, or interstate commerce, or as part of workplace safety issues. States have the plenary — main — authority for public health, but there is also a sphere for the federal government to act in.
Finally, the court suggested that the major questions doctrine prevents OSHA from having the power to impose the ETS. The court quotes Util. Air Regulatory Grp v. EPA for the premise that:
When an agency claims to discover in a long-extant statute an unheralded power to regulate “a significant portion of the American economy,” Brown & Williamson, 529 U. S., at 159, we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast “economic and political significance.”
In that case, the Supreme Court was reluctant to read into an EPA statute the power to require permits for sources that emit any level of greenhouses.
The court’s discussion of this is a closer question. Reasonable people can likely differ on whether this situation is similar to Util. Air Regulatory Grp or not.
In my view, it is not a good authority here, since in this case, the power to regulate the workplace is clearly given to OSHA, and the question is about a specific application, and in that case, the question was about whether a specific statute that did not, the Court found, directly address the question whether the EPA had a specific power. OSHA does have the power to issue nationwide workplace safety regulations and has done so before — for example, in relation to sanitation or electricity — it has implemented nationwide safety programs.
So at least arguably, this is different, but at least it does not completely overturn long-established constitutional doctrines, though it would raise some interesting questions about electricity and sanitation standards.
The court assessing the standard
The court is clearly hostile to the standard, but its hostility appears to ignore several things, including the discussion of some of these issues in the OSHA COVID vaccine mandate. As a legal matter, the court is combining two analyses here, without doing a thorough, careful job on either.
One is an analysis of whether the standard meets the requirements of the emergency temporary standard which is, as mentioned, a high bar. The other is an analysis of whether the decision violates administrative law requirements by being arbitrary and capricious.
The court did not clearly separate out the two analyses. And interestingly, although the court referred to one point made in one of the recent important supreme court cases on this — Fox v. FCC — the court did not actually do a serious analysis of the standard, nor refer to any of the other leading cases, like State Farm. This may sound petty, but the law is detail-oriented, and applying a doctrine matters. Courts justifying their decisions do need to show clearly which rules they are applying, and how they’re applying them.
Although the court starts elsewhere, a troubling point is the way it describes COVID-19, the ETS’s “impetus”. The court calls it “a purported ‘emergency’ that the entire globe has now endured for nearly two years, [footnote 10] and which OSHA itself spent nearly two months responding to,” and said that it’s “unavailing”.
In footnote 10, the court first quotes Justice Gorsuch’s statement in Mills casting doubt on whether COVID-19 can continue to qualify as a compelling interest, something I already expressed concerns about. The Court also cited a case from 1974 about an ETS OSHA put out to limit exposure to certain pesticides, in which the court struck down the ETS because:
These are not grave illnesses, however, and do not support a determination of a grave danger. A relatively small number of workers experience these difficulties, and it has been going on during the last several years thus failing to qualify for emergency measures. No deaths have been conclusively attributed to exposure to residues. The Subcommittee on Pesticides reported it was unable to find a single authentic record of a fatality resulting from a person entering or working in a field treated with a pesticide.
The court focused on the language suggesting that the issue has gone on “the last several years”, but ignored the other points.
The court used these two sources to cast doubt on COVID-19 being an emergency.
On one hand, it is true that COVID-19 has now been with us for over a year and a half, and “emergency” may imply something new and sudden. On the other hand, COVID-19 is still killing over a thousand Americans a day and hospitalizing many more. Cases are rising again in the United States, and experts are warning about the rise of the fourth wave. Suggesting that this is not serious enough for strong measures is troubling. It raises the question of what would be. A new wave of a pandemic that has already killed over 700,000 Americans would qualify as a pandemic in most people’s books.
Nor is the implied criticism of the length of time between President Biden’s September pronouncement and the ETS’ publication an argument that it is not an emergency. First, OSHA knew going in that this would be controversial; it makes sense to try and do a thorough job addressing the issues, and OSHA did – even if the Fifth Circuit gave its explanations short shrift. Second, part of the delay is because the ETS had to go through review in the White House – something not under OSHA’s control.
The court suggests that the requirement that an ETS address “substances or agents determined to be toxic or physically harmful” shouldn’t apply to an airborne virus, because it’s “an airborne virus that is both widely present in society (and thus not particular to any workplace) and non-life-threatening to a vast majority of employees into a neighboring phrase connoting toxicity and poisonousness is yet another transparent stretch.”
But the requirement does not require toxicity. It requires toxicity or “physical harm”. COVID-19 is physically harmful to a substantial portion of people exposed to it. It can even kill some. It does not have to kill everyone. The court did not explain why it does not see COVID-19 as “physically harmful”, and it likely cannot explain that, because it is. Nor does the fact that it’s widespread make it less dangerous in the workplace; lead, asbestos has, at some points, been widespread, and we still regulate them in the workplace. And the level of exposure of people to others in the workplace makes a difference to the level of danger, too. Passing someone in the street is different than sharing an office for hours.
The court describes the ETS as “a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly “grave danger” the Mandate purports to address.” It says that OSHA is required to make “findings of exposure – or at least the presence of COVID-19 – in all covered workplace”.
The court thinks OSHA needs to show “that every workplace covered by the Mandate currently has COVID-positive employees, or that every industry covered by the Mandate has had or will have “outbreaks.”” That is a very strange standard for taking measures to prevent potential exposure to a disease in the workplace.
The point of the measure is to reduce the chances of the disease being present, not to treat it. If the disease is already in the specific workplace, what is the point of preventive measures? This is like saying that OSHA should not have a rule about safety measures for using saws for workplaces that have them unless every workplace is running the saw at every given time. And if the court wants to say the risk that an employee could bring in COVID-19 does not exist in every workplace, the court may be living in a different country than the rest of us.
Further, the ETS is not a one-size-fits-all. In fact, the ETS does exempt large sections of the workforce from the requirements. Covered employees do not include those who work remotely, do not work with others, or work solely outside. And the ETS goes into detail into the evidence behind these lines (as well as into the evidence on the workplace), in sections the court does not seem to have considered. When the court says:
All else equal, a 28-year-old trucker spending the bulk of his workday in the solitude of his cab is simply less vulnerable to COVID-19 than a 62-year-old prison janitor.
It is ignoring the fact that someone not working with others is not covered by the requirement, and that all else would not necessarily be equal – if the trucker is exposed to others more often, or if he or she has a medical condition, things can be different. It’s true that details can matter – but it’s also true that an OSHA standard cannot draw lines beyond a certain point. The other point the court thinks supports its claim — the reference to naturally immune workers — is actually discussed in detail in the OSHA COVID vaccine mandate, too.
The court bases some of its analysis on the statements of OSHA in June 2020, in a case asking them to create a COVID-19 ETS, where OSHA said it did not think an ETS is desirable and a 1989 statement related to exposure to bloodborne pathogens that OSHA prefers to encourage rather than force a mandate. It is true that agencies need to explain the deviation from the previous statement. But OSHA did, in relation to its pandemic statements. In pp. 96-99 of the ETS, OSHA addressed its previous decision not to issue an ETS. OSHA said a number of things, but this paragraph may capture most of the points:
…to the contrary, at an early phase of the pandemic, when vaccines were not yet available and when it was not yet known how extensive the impact would be on illness and death, the court decided not to second-guess OSHA’s decision to hold off on regulation in order to see if its nonregulatory enforcement tools could be used to provide adequate protection against the virus. …
As OSHA indicated when it made the decision, the determination was based on the conditions and information available to the agency at that time and was subject to change as additional information indicated the need for an ETS. In light of the agency’s express qualifications and the surrounding context, any employer reliance would have been unjustified and cannot outweigh the countervailing urgent need to protect workers covered by this ETS from the grave danger posed by COVID–19.”
When the court suggests that OSHA did not address its previous statement, it is incorrect. The court can reject OSHA’s explanation – but simply ignoring it is an error. It is true that OSHA did not address the 1989 decision – likely because it did not occur to it that there is a contradiction between its position on blood-borne pathogens in 1989 and its position on preventing a raging, airborne pandemic in real-time. And there is not. These are very different situations, and OSHA explained in detail why it thinks the ETS is needed.
The court continues its discussion by criticizing the OSHA decision to limit the COVID-19 vaccine mandate to employers over 100 employees. The court said that OSHA’s decision to collect information about smaller employees “belies the premise that any of this is truly an emergency.” That argument is also strange. Considering the feasibility of implementing the rule more broadly seems reasonable.
OSHA is not giving up on regulating the smaller businesses but is taking into account feasibility and not seeking to bankrupt businesses. OSHA explained, in the ETS: “The SARS-CoV-2 virus continues to spread rapidly, and each day that passes, tens of thousands more people are infected. The employees of larger firms should not have to wait for the protections of this standard while OSHA takes the additional time necessary to assess the feasibility of the standard for smaller employers.” This seems to support the view that it’s an emergency, not going the other way.
The court then addresses the fact that under existing jurisprudence the agency “cannot use its ETS powers as a stop-gap measure”. But in the case cited, OSHA was referring to a long-standing danger and really using the ETS to shorten the rulemaking process.
That’s not the case here. COVID-19 is a global pandemic that is killing over 1,000 people a day in the United States. The administration’s plan, including the ETS, is an emergency plan throughout. The ETS is not a stop-gap here. As to cost-benefit (the court said that the ETS “flunks a cost-benefit analysis here), the decision did not really do one.
Court assessing harm
At the end of the decision the court suggests that the businesses asking a stay will be harmed by financial effects of lost employees, compliance and monitoring costs, diversion of resources, or stiff penalties – but “[i]n contrast, a stay will do OSHA no harm whatsoever.” It also says that the stay is “firmly in the public interest”, citing economic upheaval from the mandate. This balance of harms completely ignores the fact that the ETS does not require any immediate action (the mandate is due January 4), and more importantly, that COVID-19 kills and harms people. That is just not a factor for the court. It is a non-issue. This is highly problematic.
At no point did the court give any weight to people who die from COVID-19 or are harmed by it.
OSHA opened the ETS with an assessment that it would prevent, under conservative assumptions, at least 6,500 deaths and 250,000 hospitalizations in the workplace. These were not even a blip on the court’s radar. They simply did not factor in.
That is likely the most troubling aspect of this decision.