17 F.4th 604
5th Cir.2021Background
- OSHA issued an Emergency Temporary Standard (ETS) on Nov. 5, 2021 requiring employers with 100+ employees to adopt COVID-19 vaccine mandates or require weekly testing and masks for unvaccinated workers.
- A broad coalition of employers, states, religious groups, and individuals filed petitions for review and moves to stay enforcement; the Fifth Circuit entered an initial stay on Nov. 6, 2021 and conducted expedited review.
- The court applied the traditional four-factor stay test (Nken/Hilton) and evaluated whether OSHA lawfully invoked §655(c)’s ETS authority (grave danger; necessary to protect employees from workplace exposure to toxic/physically harmful substances or new hazards).
- The court found the Mandate both overbroad (applies across disparate workplaces) and underinclusive (exempts workplaces with <100 employees), and concluded OSHA’s prior positions and delay undercut an emergency justification.
- Concluding petitioners are likely to succeed on the merits and would suffer irreparable harm while OSHA would not, the Fifth Circuit reaffirmed the nationwide stay of the ETS and ordered OSHA not to implement or enforce it pending further court order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Statutory authority under §655(c) to issue ETS for COVID-19 | OSHA lacks statutory authority: §655(c) targets workplace "substances or agents" that are toxic/physically harmful or "new hazards," not a ubiquitous airborne virus; ETS requirements not met | OSHA contends COVID-19 causes workplace exposures/outbreaks that create a grave danger requiring an ETS | Court: Petitioners likely to succeed; OSHA exceeded §655(c) authority; ETS is both overbroad and underinclusive and fails statutory prerequisites |
| 2) Major questions / separation of powers and Commerce Clause | Mandate intrudes on states' police power and regulates noneconomic inactivity (refusal to vaccinate); Congress did not clearly authorize agency to decide such a question | Government argues OSHA regulates workplace safety affecting commerce and acted within its expertise | Court: Serious constitutional and major-questions concerns make OSHA's broad reading unlikely; favors petitioners (court did not finally decide constitutionality) |
| 3) Necessity / emergency showing for ETS | No true emergency: OSHA delayed action, previously declined ETSs, and recognizes tailoring is required; one-size-fits-all ETS is inappropriate | OSHA asserts workplace transmission evidence and need for rapid national action to protect employees | Court: OSHA failed to show necessity for an ETS across covered workplaces; petitioners likely to prevail on this ground |
| 4) Stay factors: irreparable harm and public interest | Petitioners will suffer irreparable harms: constitutional liberty interests, business disruption, unrecoverable compliance costs, and state police-power injury | Government claims public-health harms from delaying enforcement | Court: Irreparable harms and public-interest factors favor a stay; OSHA would not be harmed by maintaining status quo |
Key Cases Cited
- Nken v. Holder, 556 U.S. 418 (stay factors govern requests to stay administrative actions)
- Hilton v. Braunskill, 481 U.S. 770 (stay injunction factors)
- Fla. Peach Growers Ass’n v. U.S. Dep’t of Lab., 489 F.2d 120 (5th Cir.) (ETS authority is "extraordinary" and to be delicately exercised)
- Int’l Chem. Workers Union v. (D.C. Cir.), 830 F.2d 369 (ETS are an unusual response for exceptional circumstances)
- Pub. Citizen Health Rsch. Grp. v. Auchter, 702 F.2d 1150 (D.C. Cir.) (courts’ caution about broad ETS use)
- Asbestos Info. Ass’n/N. Am. v. OSHA, 727 F.2d 415 (5th Cir.) (ETS timing and economic-impact considerations)
- Util. Air Regul. Grp. v. EPA, 573 U.S. 302 (major-questions doctrine; Congress must speak clearly for decisions of vast significance)
- Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (limits on Commerce Clause and federal reach)
- Jacobson v. Massachusetts, 197 U.S. 11 (state police power to mandate vaccination)
- FCC v. Fox Television Stations, Inc., 556 U.S. 502 (agency must explain departures from prior policy)