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Court extends stay of ‘fatally flawed’ OSHA vaccine mandate

A federal appeals court has extended its stay of the U.S. Occupational Safety and Health Administration’s new mandatory COVID vaccination standard for large employers, finding it likely that the emergency measure is unconstitutional and exceeds the agency’s statutory authority.

The OSHA vaccine mandate is “fatally flawed on its own terms,” according to Judge Kurt D. Engelhardt, writing for a three-judge panel of the 5th U.S. Circuit Court of Appeals

“[H]ealth agencies do not make housing policy, and occupational safety administrations do not make health policy,” wrote Engelhardt. “In seeking to do so here, OSHA runs afoul of the statute from which it draws its power and, likely, violates the constitutional structure that safeguards our collective liberty.”

The Nov. 12 decision in BST Holdings v. OSHA follows a temporary stay entered by the court Nov. 6. The panel’s latest order prohibits OSHA from enforcing its so-called “Emergency Temporary Standard” pending “adequate judicial review” of a petition for a permanent injunction filed by a number of states, employers, religious groups in response to the unveiling of the regulation.

On Nov. 4, OSHA announced new regulations for implementing and enforcing mandatory COVID vaccination policies for employers with 100 or more employees. The ETS directs covered employers to choose to either enforce a mandatory vaccination policy in the workplace or adopt a policy requiring employees to choose vaccination or undergo regular COVID testing and wear a face covering at work.

Under the new regulations, covered employers have 30 days, or until Dec. 5, to have written vaccination policies developed and implemented by that date. Employers that allow employees the option to forgo vaccinations must commence weekly testing of unvaccinated employees within 60 days, or beginning on Jan. 4.

OSHA adopted the new regulations pursuant to 29 U.S.C. §655(c)(1), which authorizes the agency bypass standard notice-and-comment procedures for six months by providing “for an emergency temporary standard to take immediate effect upon publication in the Federal Register.

In order to act in accordance with the statute, OSHA is required to determine “(A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.”

In concluding that it was likely that OSHA had overstepped its statutory authority, Judge Engelhardt noted that only one of the six ETSs adopted by the agency in its 50-year history had survived legal challenges.

The judge found problematic the fact that the COVID vaccine mandate did not appear to be the sort of carefully crafted regulation required for an exercise of the “extraordinary” emergency powers provided in §655(c)(1).

“Quite the opposite, rather than a delicately handled scalpel, the Mandate is 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,” Engelhardt wrote.

The judge also questioned whether OSHA would ultimately be able to show that the mandate was necessary.

“[T]he Mandate fails to consider what is perhaps the most salient fact of all: the ongoing threat of COVID-19 is more dangerous to some employees than to other employees,” the judge wrote. “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. Likewise, a naturally immune unvaccinated worker is presumably at less risk than an unvaccinated worker who has never had the virus.”

Engelhardt also concluded that the ETS suffered from inherent inconsistencies that undercut OSHA’s contention that the COVID pandemic created the type of grave danger that demanded regulatory action.

“The most vulnerable worker in America draws no protection from the Mandate if his company employs 99 workers or fewer,” Engelhardt wrote. “The reason why? Because, as even OSHA admits, companies of 100 or more employers will be better able to administer (and sustain) the Mandate. That may be true. But this kind of thinking belies the premise that any of this is truly an emergency.”

According to the judge, courts in the past had regarded the sort of “underinclusiveness” evinced by the OSHA vaccine regulation “as a telltale sign that the government’s interest in enacting a liberty-restraining pronouncement is not in fact ‘compelling.’”

Finally, the judge found that the vaccine mandate raised “serious” constitutional concerns indicating that the petitioners would ultimately prevail.

“[T]he 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,” Engelhardt wrote. “A person’s choice to remain unvaccinated and forgo regular testing is noneconomic inactivity. And to mandate that a person receive a vaccine or undergo testing falls squarely within the States’ police power.”

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