Federal Appeals Court Stops OSHA Vax-Mandate Saying, It "Grossly Exceeds OSHA’s Statutory Authority”

On Friday, a three-member panel of the United States Court of Appeals for the Fifth Circuit issued an order continuing its initial November 6, 2021, stay of the emergency temporary standard (ETS) that the U.S. Occupational Safety and Health Administration (OSHA) issued on November 4, 2021.

Specifically referring to the requirement as a “mandate,” the court said the rule, instituted through the Labor Department, “grossly exceeds OSHA’s statutory authority,” according to the opinion, written by Judge Kurt D. Engelhardt and joined by Judges Edith H. Jones and Stuart Kyle Duncan.

“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,” they wrote.

The order also found that the ETS “imposes a financial burden upon [private businesses and organizations] by deputizing their participation in OSHA’s regulatory scheme, exposes them to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road.” It stated that the Occupational Safety and Health Act was not intended to allow the agency to make sweeping pronouncements on matters of public health.

The 5th Circuit's order criticized the ETS for failing to “account for differences in workplaces that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly ‘grave danger’ the [ETS] purports to address.” The order questioned whether OSHA has shown a “grave danger” and that the ETS is “necessary.”

The court concluded that parties seeking to stop the order are entitled to a stay because:

1. they are likely to succeed on the merits and are suffering irreparable harm;
2. a stay pending adequate judicial review of the underlying motion for a permanent injunction will not harm OSHA; and
3. the public interest favors a stay.

The Biden Administration finally released its vaccine mandate after weeks of speculation that it may have simply been a September press release designed to push employers toward strict vaccination policies without any legal backing. It provides that private employers with more than 100 employees must require staff to get vaccinated — or face weekly testing and mandatory masking.

The court halted the policy, scheduled to take effect Jan. 4, and ordered the Occupational Safety and Health Administration not to further implement or enforce the mandate. The Biden administration had asked the 5th Circuit to hold off on ruling until a judicial lottery can take place next week to consolidate several challenges to the mandate before a single appeals court.

The order compels OSHA to “take no steps to implement or enforce the [ETS] until further court order,” without any geographic limitation on that restriction.

What Does This Mean for OSHA's Vaccine Mandate?

This order is the second response from the three-member panel of the Fifth Circuit to the petitioners’ motions for a “stay barring OSHA from enforcing the [ETS] during the pendency of judicial review.” The order reaffirms the court’s initial stay on November 6 and will remain in place “pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction.”

A further order will eventually come from the federal judicial circuit that gets assigned the consolidated petitions to review the ETS pending in 11 of the 12 United States circuit courts of appeals. On November 16, 2021, the U.S. Judicial Panel on Multidistrict Litigation will conduct a statutorily required random selection to decide which circuit will hear the consolidated cases from around the country.

Who Ultimately Will Decide the Fate of the ETS?

Regardless of which federal circuit court “wins the lottery” and hears the consolidated petitions, employers should expect the Supreme Court of the United States to decide the ultimate fate of the ETS. The timing of when that will happen is unclear, but it will be at least weeks, if not months out. While OSHA could petition the Supreme Court to review the Fifth Circuit’s order rather than waiting on the lottery and ensuing proceedings at the circuit court level, OSHA is more likely to wait for the lottery, and another round of briefing. Many insiders and legal scholars believe that the Biden Administration is okay with a less than speedy final disposition of this matter so that businesses are incentivized to push for vaccinations and continue to prepare for the possible enforcement of the mandate while the courts sort it out.

Do I still need to comply with the December 6 and January 4 deadlines?

No. Because OSHA is barred from both enforcing the ETS and taking any steps to implement the ETS, the December 6 and January 4 deadlines are no longer in effect pending further court action. While the ETS is no longer in effect, the Fifth Circuit ruling has no impact on the Centers for Medicare and Medicaid Services’ (CMS) interim final rule for healthcare workers and President Biden’s Executive Order 14042 on mandatory vaccinations for federal contractors. Employers should continue to adhere to these requirements as applicable.

See also: Littler Mendelson's Fifth Circuit Enjoins OSHA from Enforcing Mandatory Vaccination or Test Emergency Regulations.

Compliance Updates and Benefit News, Week of Nov. 3

Compliance Updates

Cal/OSHA Amends Notice and Reporting Requirements for COVID-19 - On Oct. 5, 2021, California approved Assembly Bill 654 (AB 654) to amend California’s Occupational Safety and Health Administration (Cal/OSHA) COVID-19 notice and reporting regulations. The bill became effective upon adoption on Oct. 5, 2021. The bill requires employers to give notice of COVID-19 outbreaks to: Qualifying individuals or employees exposed to qualifying individuals within one business day; and Local public health agencies within 48 hours or one business day, whichever is later.

Vaccine Mandates And Vaccine Bans – Clues On Where This Ends And Making Decisions In The Interim - "Employers with 100 or more employees: While the implementation of federal policy via the OSHA ETS appears imminent, it is critical to understand that there will not be the possibility of federal preemption of state law vaccine bans until the OSHA ETS itself becomes effective and has the force of law. Once that occurs, and assuming legal challenges to OSHA’s ability to publish and enforce the ETS are rejected, federal preemption is a good bet here as well. However, unlike the executive order mandating vaccinations for all federal employees and employees of federal contractors, the OSHA ETS is expected to still allow for weekly negative COVID tests as an alternative to mandatory vaccination. That said, the Montana outright ban on vaccinations, as well as Texas’s ban on vaccination requirements for “any reason of personal conscience,” seems likely to interfere with OSHA’s exercise of authority governing workplace safety."

EEOC Updates Guidance on Religious Objections to Employer COVID-19 Vaccine Mandates - On Oct. 25, 2021, the Equal Employment Opportunity Commission (EEOC) issued new answers to frequently asked questions (FAQs) about how employers should handle employee requests for religious exemptions from their COVID-19 vaccine mandates.

How Employers Can Handle Confidentiality and Privacy Concerns Related to Collecting COVID-19 Vaccine Information - “To many employers’ surprise, such records must be retained for the tenure of the employee – plus 30 years. This includes medical histories, medical examination results and opinions, diagnoses, progress notes and recommendations, first aid records, descriptions of treatments and prescriptions, and employee medical complaints. Some state laws also define medical records. For example…"

An Employer’s Guide to Navigating Third-Party Vaccine Mandates on Visitors, Vendors and More - “As employers implement their own internal COVID-19 protocols and procedures, many have the additional burden of complying with third-party vaccine policies or enforcing their own vaccine policies upon non-employees such as independent contractors, vendors or visitors.” 

COVID-19 Vaccination Religious Exemption Requests: 5 Key Takeaways From the EEOC’s Updated Technical Assistance - “On October 25, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its technical assistance related to the COVID-19 pandemic. The updated and expanded COVID-19 technical assistance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” adds a new section (section L) with information related to requests by applicants or employees seeking to be excused from COVID-19 vaccination requirements due to sincerely held religious beliefs, practices, or observances.”

Benefit News

This couple retired in their 30s—now they live off the grid and spend $40,000 a year - "The couple formed a plan to cut their spending and save 70% of their combined income so they could quit their jobs and travel the country, living only off of the growth of their investment accounts. Steve and Courtney retired in 2016 and 2017, respectively, with a combined net worth of $870,000. Despite not adding a penny to their investments in the ensuing half-decade, they are now worth about $1.2 million and don’t plan to head back to the office any time soon."

Thousands Of State Workers Are Unvaccinated. California Isn’t Testing Half Of Them For COVID As Required - "Three months after Gov. Gavin Newsom required state workers to be fully vaccinated against COVID-19 or undergo weekly testing, his pledge that the California government would lead by example has not been fulfilled: Many public agencies face low vaccination rates, and most state-run workplaces have failed to test unvaccinated employees. At the California Department of Forestry and Fire Protection, for example, fewer than a third of employees have provided proof they are fully vaccinated, while 6,700 employees are either not vaccinated or have declined to provide their status. Cal Fire said it is testing just 75 employees."

Health & Wellness

Study links too much free time to lower sense of wellbeing - "After crowdsourcing opinions on which activities would be equated with leisure time and then calculating this time for participants, the team found that while subjective wellbeing rose with the amount of free time up to about two hours, it began to drop once it exceeded five hours."

Walking 7,000 steps a day can cut the risk of heart disease - "Taking 7,000 steps a day can keep a middle-aged person’s arteries healthy and reduce their risk of death by up to 70%, a new study concludes. The findings by researchers from across the United States suggest that this lower number is still enough to protect against serious heart complications, rather than the common recommendation of 10,000 steps per day."