“IT IS ORDERED that OSHA take no steps to implement or enforce the [vaccine] Mandate until further court order.”

In a decision highly critical of OSHA’s November 5, 2021 Emergency Temporary Standard (“ETS”), which mandates that all employers with 100 or more employees “develop, implement and enforce a mandatory COVID-19 vaccine policy,” on November 12, 2021, the Fifth Circuit Court of Appeals continued its stay of OSHA’s vaccine mandate pending consideration of the petitioners’ motion for a permanent injunction. BST Holdings LLC et al. v. OSHA, Case NO. 21-60845. However, just a few days later, on November 16, 2021, the U.S. Judicial Panel on Multidistrict Litigation ordered that all of the pending litigation on the OSHA vaccine mandate, including the BST case, will be consolidated and determined by the Sixth Circuit Court of Appeals in Cincinnati, Ohio. (It was randomly selected by the Panel.) The Fifth Circuit’s stay remains in place, for now, but it will no longer have the final say on the issue. The court’s reasoning is nonetheless relevant and quite telling.

The court focused its analysis on OSHA’s authority to issue an emergency temporary standard (an extremely rare action) under the circumstances presented by the COVID pandemic. The court found that the petitioners’ challenges to OSHA’s mandate were likely to succeed on the merits for a number of reasons, including:

• The mandate is 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 workers in different occupations, AND underinclusive, purporting to save employees with 99 or more coworkers from a “grave danger,” while making no attempt to shield employees with 98 or fewer coworkers from the very same threat.
• The purported “emergency” OSHA seeks to address has encompassed the globe for nearly two years and it spent nearly two months crafting the standard.
• The Biden Administration expressly stated that the ETS vehicle was a “work around” for imposing a national vaccine mandate. The court went so far as to quote the White House Chief of Staff’s retweet of a tweet referring to the ETS as “the ultimate work-around for the Federal govt. to require vaccinations.”
• Rather than being the “delicately exercised” “extraordinary power” Congress intended an emergency temporary standard to be, “the Mandate is a one-size fits-all sledgehammer. . .”

Considering whether the mandate satisfied the statutory requirements for the issuance of an ETS, the court further found:

• It was a “stretch” for OSHA to “attempt to shoehorn an airborne virus that is both widely present in society (and thus not particular to any workplace) and non-life threatening to a vast majority of employees” to meet the “toxicity” requirements of the statute.
• OSHA failed to demonstrate that the vast majority of employees encompassed by the ETS were exposed to the virus in a manner which posed “grave danger” to them.
• OSHA took a completely contrary position in response to previous requests to issue an ETS to address the pandemic, contending that the circumstances did not present the type of “grave danger” that warranted the issuance of an ETS, and that it was not practically feasible to tailor “one size fits all” response to the pandemic.

Next, the court examined the necessity of the mandate, finding it “staggeringly overbroad” and noting that it failed to account for the fact that the virus posed a far greater threat to some employees than others, while also being underinclusive, questioning how, if an emergency truly existed, it could exempt workplaces with 99 or fewer employees. “The underinclusive nature of the Mandate implies that [its] true purpose is not to enhance workplace safety, but. . . to ramp up vaccine uptake by any means necessary.”

The court also expressed “serious constitutional concerns” about the mandate and found that failure to impose the stay would pose a threat of irreparable harm to individuals, who would be forced to choose “between their job(s) and their jab(s).” It further noted that businesses subject to the mandate also faced irreparable harm absent a stay, facing lost employees, the cost of compliance, the diversion of limited resources and extensive penalties for noncompliance.

Clearly, this battle is far from over and there are multiple challenges now pending in the Sixth Circuit. For now, it can reasonably be stated that a January 4, 2022 deadline for compliance with the vaccine mandate no longer exists. Stay tuned.

If you have any questions about the OSHA vaccine mandate, the court’s temporary stay of the mandate or other issues related to mandatory vaccination policies, feel free to contact Wessels Sherman attorney Alan Seneczko at alseneczko@wesselssherman.com or (262) 560-9696.