The Fifth Circuit just dunked hard on OSHA’s vax-or-test mandate

On Friday afternoon, when four of my FisherBroyles employer law partners and I were dissecting the OSHA vax-or-test Emergency Temporary Standard (ETS) on Zoom — ICYMI, you can watch the replay here on The Employer Handbook YouTube Channel (https://bit.ly/TheEmployerHandbookYouTube)  — I asked them to raise their hand if they thought that the ETS would ultimately survive judicial scrutiny.

No one did.

Hours later, the Fifth Circuit Court of Appeals made us look good when it issued this opinion reaffirming its earlier stay of the ETS.

OSHA loses badly.

In no uncertain terms, the Fifth Circuit’s 22-page order was a thrashing of the OSHA ETS. We’re talking Harlem Globetrotter and Washington Generals. I encourage you to read the entire opinion — including the footnotes, where I ate most of my popcorn.

But, if reading 22 pages requires too much effort for you — I won’t judge — here’s the money shot:

On the dubious assumption that the Mandate does pass constitutional muster—which we need not decide today—it is nonetheless fatally flawed on its own terms. Indeed, the Mandate’s strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat). The Mandate’s stated impetus—a purported “emergency” that the entire globe has now endured for nearly two years, and which OSHA itself spent nearly two months responding to—is unavailing as well. And its promulgation grossly exceeds OSHA’s statutory authority.

The ETS may be unconstitutional too.

While the court said it wasn’t going to decide the mandate’s constitutionality, it sort of did. The Fifth Circuit concluded that the ETS exceeded the federal government’s authority under the Commerce Clause because it regulates noneconomic activity (i.e., the personal decision to get vaccinated), which falls within the States’ police power.

The court also notes that the ETS violates separation of powers principles because there was no clear expression of intent from congress to convey to OSHA such broad authority to regulate workplaces with this ETS.

But this is all nerd stuff.

So, what should employers do now?

How about I tell you what it means for your workplace.

• If you operate in a state or locality requiring vaccine, testing, or both, do that.
• If you are subject to the federal contractor vaccination mandate or a healthcare employer subject to the CMS mandate, nothing about the Fifth Circuit’s decision changes that.
• If you have 99 or fewer employees and you’re not subject to either of the previous two bullets, then you’re a total employment law geek for reading this, and I love you for it.

As for the rest of you, OSHA has confirmed that it is suspending activities related to implementing and enforcing the ETS pending future developments in the litigation.

But should you also slow your roll?  I suppose that depends on how risk aggressive/averse you are.

After the Fifth Circuit ruling, the next step is that lottery I wrote about last week, which should take place on Tuesday. One appellate court — could be the Fifth — will be selected at random to consolidate and decide all of the pending OSHA ETS lawsuits. If the petitioners win, the ETS will be 86’ed altogether unless OSHA appeals to the Supreme Court. (In the unlikely event that the petitioners lose, they will appeal to the Supreme Court.)

That’s the state of play.

Again, if you want to learn more about the ETS, check out the replay of Friday’s Zoom on The Employer Handbook YouTube Channel (https://bit.ly/TheEmployerHandbookYouTube) when four of my FisherBroyles employer law partners and I were dissecting the ETS.