Four separate groups of petitioners challenging the OSHA ETS, including a coalition of 27 states, have asked the court to hear the OSHA challenge en banc, arguing that the case involves a question of exceptional importance in that it is an “unprecedented mandate of COVID vaccines based on a rarely used law of questionable applicability.” Bentkey Servs., LLC d/b/a The Daily Wire v. OSHA, U.S. Dep’t of Labor, Docket 21-4027, Docket Entry [32], p. 3 (6th Cir.).

Federal appellate cases are normally heard by a 3-judge panel selected at random.  Before appealing to the U.S. Supreme Court, the losing side may then petition for rehearing en banc, meaning that all of the active circuit judges would review the case and a majority of those could overturn or affirm the decision of the 3-judge panel.

Rule 35 of the Federal Rules of Appellate Procedure allows parties to request that the circuit bypass the normal 3-judge panel and have the case initially heard by all the active judges where the case “involves a question of exceptional importance.”  The petitioners argue that the OSHA ETS involves important constitutional questions about appropriate delegation of authority to OSHA, the Commerce Clause, and state versus federal powers under the 10th Amendment to the U.S. Constitution.  The answers to these questions will affect about 80 million people in this country and their right to make personal healthcare decisions.  Petitioners also argue that having the case heard en banc will promote judicial efficiency because the decision of the 3-judge panel would likely result in a request for a rehearing en banc anyway.  The OSHA ETS is hotly contested and politically charged, as evidenced by the various petitioners on both sides of the issue which have filed 34 petitions to review the ETS in 12 federal judicial circuits.

The government has until November 30, 2021 to file one consolidated response to all the petitions for the case to be heard en banc.

If you have questions about your compliance obligations under applicable federal or state laws, please reach out to a member of our Workplace Safety and Health Practice Group or COVID-19 Team.

In a 22-page order issued November 12, 2021, the Fifth Circuit reaffirmed its initial stay of OSHA’s vaccine Emergency Temporary Standard (ETS). The 5th Circuit stated that petitioners are likely to succeed on the merits, meaning that OSHA’s ETS is an overreach of its authority on likely a variety of grounds. The 5th Circuit also outlined arguments on why the continued stay is necessary to avoid irreparable harm to the consolidated group of petitioners comprised of private employers and states, both inside and outside the geographical boundaries of the 5th Circuit.

OSHA’s ETS is a Sledgehammer

The Court identifies that the OSHA ETS is both overinclusive in its application to employers and employees across all industries and workplaces in America and underinclusive at the same time because it does not apply to employers with 99 employees or less. The Court also questions the “grave danger” needed to justify the ETS because the country (and the world) have been battling COVID-19 for nearly 2 years. Although OSHA’s ability to establish an emergency temporary standard is an extraordinary power that should be delicately exercised in limited situations, the Court notes that “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.

OSHA’s ETS is a Pretext for the Government to Require Vaccinations

The Fifth Circuit notes that the administration has done a 180 from its previous position on both vaccines and on why an ETS was not necessary without giving a detailed explanation for this flip flop. The Court notes that on the day of President Biden’s pronouncement of his Path out of the Pandemic plans including direction to OSHA to promulgate and ETS for vaccines, the White House Chief of Staff retweeted that the ETS “is the ultimate work-around for the Federal govt to require vaccinations.” The Court also notes that in litigation before the D.C. Circuit last year, the government argued that an ETS for COVID-19 was unnecessary. The Court also quoted OSHA’s previous position on vaccinations in the preamble to its regulation on bloodborne pathogens, in which it stated that “Health in general is an intensely personal matter….OSHA prefers to encourage rather than try to force by governmental coercion, employee cooperation in [a] vaccination program.” 54 Fed. Red. 23,042, 23,045 (May 30, 1989). Notably, OSHA’s bloodborne pathogen standard does not mandate that employees be given the hepatitis B vaccine if they are exposed to a bloodborne pathogen in the workplace—only that an employer offer the vaccine series to exposed employees. Employees may decline the vaccine if they choose and sign a declination form.

The Mandate Raises Serious Constitutional Concerns

The Court also notes that the ETS likely exceeds the federal government’s authority under the Commerce Clause and threatens states’ powers under the 10th Amendment to the U.S. Constitution, which reserves to the states powers not specifically granted to the federal government. The Court further notes that the ETS regulates noneconomic activity—an employee’s personal choice about their individual health and their decision not to get vaccinated or to undergo testing—which falls squarely within the States’ police power.

Judge Duncan, in his concurrence granting the continued stay, notes that the sweeping mandate of the OSHA ETS poses a difficult constitutional question of whether Congress would be authorized to pass such legislation under the Commerce Clause. But in his opinion, OSHA clearly does not have such authority.

Conclusion

The Fifth Circuit’s order continuing the stay signals how it would likely rule if it wins the multi-state district lottery and gets to decide the merits of the challenges to OSHA’s ETS. Even if the 5th Circuit does not end up adjudicating the merits of the ETS, at the very least, it creates a roadmap for other circuits to follow.

If you have questions about your compliance obligations under applicable federal or state laws, or need assistance with OSHA inspections and citations, please reach out to the Jackson Lewis attorney with whom you often work, or any member of our Workplace Safety and Health Practice Group, our Disability, Leave and Health Management Practice Group, or our COVID-19 team.

Less than two months after receiving direction from President Joe Biden, the Occupational Safety and Health Administration (OSHA) has issued an Emergency Temporary Standard (ETS) covering employers with at least 100 employees. Employers must comply with many of the requirements within 30 days and begin required testing within 60 days of the November 5, 2021, effective date.

To read this article in its entirety, please click here.

Manufacturing employers continue to feel the brunt of emerging and evolving trends related to the COVID-19 pandemic: workplace safety, labor shortages, absence management, remote technology, and employee retention — just to name a few. On the workplace safety front, mask mandates, testing protocols, and vaccine issues continue to make headlines, including President Joe Biden’s September 9, 2021 announcement regarding vaccine and testing requirements for companies with 100 or more employees. These developments have all employers looking at strategies for how to comply with an upcoming Emergency Temporary Standard (ETS) for employers with 100 or more employees from the Occupational Safety and Health Administration (OSHA).

To read the article in its entirety, please click here.

The Occupational Safety and Health Administration (OSHA) had announced this spring its intention to implement a new heat illness standard that will apply to indoor environments. Now, the U.S. Department of Labor has announced “enhanced and expanded” efforts to address heat-related illnesses as part of the Biden Administration’s commitment to workplace safety, climate resilience, and environmental justice.

To read this article in its entirety, please click here.

On September 9, 2021, the White House issued Path Out of the Pandemic: President Biden’s COVID-19 Action Plan (the Plan). The Plan outlines a six-pronged approach, portions of which will impose new obligations on employers across the country.

To read the article in its entirety, please click here.

In June, with much fanfare, California announced it was reopening and lifting many of the COVID-19 restrictions that had been in place through state executive and health department orders. However, as there have been surges of COVID-19 across the state, many state and local orders requiring COVID-19 controls have changed in response. Mask mandates and vaccination requirements for certain workers, in particular, have been on the rise. Employers should carefully review new state and local guidance as well as their procedures to account for the new developments.

Read the full article here.

This past spring, the Occupational Safety and Health Administration (OSHA) announced its intention to implement a new heat illness standard that will apply to indoor environments. The agency said it has manufacturing facilities in mind, as the rule targets “indoor workers without climate-controlled environments.”

To read this article in its entirety, please click here.