This weekend the 5th Circuit of the U.S. Court of Appeals stayed the OSHA Emergency Temporary Standard (ETS) requiring COVID vaccinations and/or testing for firms employing 100 or more. Phillip Russell, a partner at Ogletree Deakins, sent around his “instant analysis” below.
ETS Stayed – Instant Analysis: what does the court mean by “grave statutory and constitutional issues” with the ETS?
Is the stay nationwide and is the ETS now DOA?
This stay is temporary (and less than two pages), so we don’t know yet for sure. But I reviewed one of the well-written briefs (attached) and here are just some points made to the court:
- The ETS is an unconstitutional delegation of authority from Congress to the executive branch, and therefore violates the non-delegation doctrine under Article I, Section 1 of the US Constitution (“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”)
- The ETS is a quintessential legislative act, not an executive one.
- Congress can only delegate legislative authority when it provides the executive agency an “intelligible principle” – meaning definitions and boundaries.
- The ETS does not define “grave danger” or “necessary” or whether COVID is a “substance or agent” or a “new hazard” in the workplace.
- Congress’s failure to define these key terms or provide guidance when interpreting them delegates too much power to OSHA.
- Other than the undefined word, “necessary” in Section 6(c) of the OSHA Act, there is no constraint on OSHA’s discretion.
Does the injunction apply nationwide? – Likely yes.
The petitioners sought a nationwide injunction based on equitable principles previously established by US Supreme Court precedent. They argued that because the ETS is nationwide, the stay should be nationwide as well. It would have been more clear if the court’s order staying the ETS would have used the word nationwide, but that is the likely impact for now.
Is the ETS dead? No.
This order staying the ETS mandate only addresses the petitioners’ request for a stay pending further action by the court. However, the court cannot initially grant a stay or leave it in place unless it finds the petitioners have a substantial likelihood of success on the merits, among other things.
If the stay remains in place after the initial briefing, it will mean the ETS is in “grave danger” of not surviving.
OSHA’s response brief is due Monday at 5 p.m.; the petitioners can file a reply brief by Tuesday at 5 p.m. The court can hold oral arguments or rule on the briefs alone. Even if the court continues the stay, there will be a process by which all federal circuits with pending petitions then determine which circuit will review the ETS substantively.
Will the ETS make it to SCOTUS? Yes.
No matter who loses at the federal appellate court level, the ETS will be headed to the high court for final determination.
What should employers with 100+ employees do now?
Plan for both outcomes, of course. The ETS may survive the legal challenges and the current stay may not remain in place. If so, the 30 and 60-day deadlines will stay in place and employers should consider preparations for compliance.
How will the ETS be enforced?
There is nothing in the ETS that changes how OSHA enforces standards. The agency still must conduct inspections and issue citations – that are then reviewable by the independent US Occupational Safety and Health Review Commission (OSHRC). There is nothing “automatic” about the ETS standards that could result in OSHA issuing a citation that is final and payable immediately.