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  • Robert Lusk

Fifth Circuit Slaps Down OSHA’s COVID-19 ETS



The debate about the pros and cons of vaccination and other precautions against the transmission of the COVID-19 virus is on-going. In this case, the Fifth Circuit was not asked to weigh in on the general merits of this debate. Rather, this case addressed whether the U.S. Department of Labor’s Occupational Safety and Health Administration’s (OSHA) had legal authority to issue an Emergency Temporary Standard (ETS) requiring large private-sector employers to create and enforce COVID-19 vaccination and testing policies. More specifically, the ETS purported to require employers with 100 or more employees to force their choice between vaccinations or weekly testing and mask-wearing. The ETS would also impose the same requirements on state and local employers and employees in states like Michigan, that have state-wide OSHA policies. For the time-being, the Fifth Circuit put the ETS firmly on ice, BST Holdings, LLC, et al., v. OSHA, Case No. 21-60845 (November 12, 2021).


The plaintiffs-employers in BST requested an order staying the ETS pending judicial review. The court, in the context of this request, was required to decide whether the employers made a strong showing they were likely to succeed on the merits of their challenge to the ETS; whether one of the parties would suffer irreparable injury if a stay were granted; whether a stay would substantially injure other interested parties; and the general public interest. The court found in favor of the employers on all counts and did so in unequivocal language.


The court determined the employers were likely to succeed on the merits of their challenge because the ETS clearly exceeded OSHA’s legal authority in several ways and, in addition, was probably unconstitutional. On this point, the court spiced-up its opinion by repeatedly referring to statements by the administration and OSHA contradicting the position OSHA took in this case. Turning to the second factor, the court determined denying the proposed stay would do irreparable harm to affected employers and employees by, among other things, substantially burdening the liberty interests of reluctant employees put to a choice between “their jobs and their jabs.” The employers for their part, in addition to losing employees and business, would suffer irreparable harm in being subjected to a regulation that would later be held invalid, leaving them without recourse for their lost business, employees, and compliance costs. The court added that the individual states’ interests in preserving their police powers (i.e., the power to require vaccinations or not) would also suffer irreparable loss through federal usurpation.


On the other hand, the temporary suspension of OSHA’s ability to enforce an illegal and probably unconstitutional ETS was no loss at all. The public also had an important interest in avoiding OHSA’s attempted power grab. It is one thing, the court noted, for Congress to delegate to an administrative agency like OSHA the relatively benign authority to regulate disputes within the bounds of its expertise. It is entirely another to pretend OSHA has either the remit or expertise to battle a world-wide pandemic that is far from limited to workplace safety.


The Fifth Circuit’s decision, overall, may be characterized as a broadside against the ability of the federal government to regulate the details of its citizens’ health choices. While recognizing the ability of the states to exercise police power in the interest of the public health and welfare, the Fifth Circuit drew a distinct boundary between the citizenry, the “limited” power of the federal government and the even more limited power of politically unaccountable administrative agencies.