Fifth Circuit Stays OSHA Vaccination and Testing Standard

Legal Sidebari

Fifth Circuit Stays OSHA Vaccination and
Testing Standard
Updated November 17, 2021
On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit) reaffirmed its initial
stay of a new Occupational Safety and Health Administration (OSHA) emergency temporary standard
(ETS) that would generally require private employers with 100 or more employees to establish and
enforce mandatory Coronavirus Disease 2019 (COVID-19) vaccination policies. The stay bars OSHA
from enforcing the standard during the pendency of judicial review. Shortly after its November 5, 2021
publication in the Federal Register, the ETS was challenged in the Fifth Circuit, as well as in the Sixth,
Seventh, Eighth, Eleventh, and District of Columbia Circuits. Additional challenges have also now been
brought in the First, Second, Third, Fourth, Ninth, and Tenth Circuits, with petitions filed by labor
organizations in the latter five circuits. The Fifth Circuit’s stay applies nationally as the court considers
whether to enjoin the ETS permanently. This Legal Sidebar reviews OSHA’s authority to issue ETSs,
what is required by the agency’s COVID-19 vaccination and testing standard, and the court’s holding in
BST Holdings, L.L.C. et al. v. OSHA.
Background
Congress enacted the Occupational Safety and Health Act (OSH Act) in 1970 to “assure so far as possible
every working man and woman in the Nation safe and healthful working conditions.” The law seeks to
reduce the frequency and severity of work-related injuries and illnesses by promoting a “comprehensive,
nationwide approach” to workplace safety, and authorizes the Secretary of Labor to promulgate
occupational safety and health standards to protect workers. The Secretary has delegated this authority to
the Assistant Secretary of Labor for Occupational Safety and Health, who acts as OSHA’s administrator.
OSHA conducts workplace inspections and investigations to ensure compliance with its standards, and
may issue citations and penalties for noncomplying employers.
While OSHA’s safety and health standards generally do not become effective until the agency publishes a
proposed standard in the Federal Register and offers interested parties an opportunity to comment on the
standard, the OSH Act authorizes OSHA to promulgate emergency standards that have immediate effect
when specified conditions exist. Specifically, section 6(c)(1) of the OSH Act, codified at 29 U.S.C.
§ 655(c)(1), authorizes OSHA to issue an ETS that takes effect upon publication in the Federal Register if
the agency determines that employees are exposed to “grave danger from exposure to substances or
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agents determined to be toxic or physically harmful or from new hazards, and . . . such emergency
standard is necessary to protect employees from such danger.”
In its November 5, 2021 Federal Register notice, OSHA explained that a COVID-19 vaccination and
testing ETS is appropriate because unvaccinated workers face a grave danger from exposure to the
COVID-19 virus in the workplace. The agency contended that its grave danger finding was based on “the
severe health consequences associated with exposure to the virus along with evidence demonstrating the
transmissibility of the virus in the workplace and the prevalence of infections in employee populations[.]”
OSHA further maintained that vaccination provides the most effective and efficient control available to
mitigate the grave danger faced by unvaccinated workers and that the ETS, which requires regular testing,
the use of face coverings, and the temporary removal of employees infected with COVID-19 from the
workplace, will further protect workers who remain unvaccinated.
COVID-19 Vaccination and Testing ETS
OSHA’s new ETS generally requires private employers with 100 or more employees to establish,
implement, and enforce a written mandatory vaccination policy by December 6, 2021. Employees across
all of an employer’s locations will be counted to determine whether the ETS applies, with both full-time
and part-time employees included in the count. Under the ETS, covered employers must determine the
vaccination status of their employees. Employees are required to provide proof of vaccination status to the
employers, and the employers must preserve such proof and maintain a roster of each employee’s
vaccination status. Employers must support COVID-19 vaccinations by providing up to four hours of paid
time to each employee for each primary vaccination dose and must provide paid sick leave to employees
who experience side effects following any primary vaccination dose.
An employer’s vaccination policy must provide for the vaccination of all employees, except the following
individuals: those for whom a vaccine is medically contraindicated; those for whom medical necessity
requires a delay in vaccination; and those who are legally entitled to a reasonable accommodation under
federal civil rights laws because they have a disability or a sincerely held religious belief that conflicts
with the vaccination requirement. Alternatively, an employer may be exempt from maintaining this type
of policy if it instead establishes, implements, and enforces a written vaccination or testing policy that
allows an employee to either (1) be fully vaccinated against COVID-19, or (2) provide proof of regular
testing for COVID-19 and wear a face covering when indoors or occupying a vehicle with another person
for work purposes.
COVID-19 testing for employees who are not fully vaccinated must occur at least once every seven days
for individuals who report at least once every seven days to a workplace where others, such as coworkers
or customers, are present. Employees who do not report to such a workplace during a period of seven or
more days must be tested within seven days prior to returning to the workplace. Employers are required to
maintain a record of each test result but do not have to pay for any costs associated with COVID-19
testing. Employers have until January 4, 2022 to comply with the ETS’s COVID-19 testing requirements.
Employees who receive positive COVID-19 test results or diagnoses of COVID-19 must promptly notify
their employers of such results or diagnoses. Employers must remove the employees from the workplace
until they individually receive a negative result from a COVID-19 nucleic acid amplification test, satisfy
the return-to-work criteria in the Centers for Disease Control and Prevention guidance Isolate if You Are
Sick, or receive a recommendation to return to work from a licensed healthcare provider.
BST Holdings, L.L.C. et al. v. OSHA
In its motion to stay the ETS filed in the Fifth Circuit, management company BST Holdings and a group
of other petitioners argued that the standard violates the nondelegation doctrine under Article I of the U.S.
Constitution. In general, the doctrine is based on the principle of separation of powers and limits

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Congress’s authority to delegate its legislative power to other branches of government. BST Holdings
contended that the ETS is a “sweeping” legislative act that is directed toward increasing the number of
vaccinated Americans and is unrelated to the OSH Act’s purpose of protecting workplace safety. BST
Holdings further questioned OSHA’s assertion that COVID-19 poses a grave danger that requires an ETS.
Noting that two-thirds of American adults are fully vaccinated and that OSHA did not issue the ETS until
eight weeks after President Biden directed the agency to act, BST Holdings characterized the standard as
an “interim relief measure” to “force [the unvaccinated] to get vaccinated.”
OSHA maintained, however, that Congress’s delegations to an agency are valid so long as they provide an
“intelligible principle” for the agency to follow. According to OSHA, section 6(c)(1) of the OSH Act, 29
U.S.C. § 655(c)(1), provides clear standards for the issuance of ETSs; permitting such standards only
when employees face grave danger from new hazards or exposure to toxic or physically harmful
substances or agents. OSHA contended that the COVID-19 virus is both a new hazard and a physically
harmful agent.
In staying the ETS and determining that the petitioners were likely to succeed on the merits, the Fifth
Circuit contended that the standard exceeds OSHA’s authority and raises serious constitutional concerns.
The court observed that the OSH Act was not intended under either the nondelegation doctrine or the
Commerce Clause “to authorize a workplace safety administration in the deep recesses of the federal
bureaucracy to make sweeping pronouncements on matters of public health affecting every member of
society in the profoundest of ways.” The court thus held that ETS exceeded OSHA’s statutory authority,
as the court determined that the ETS “derives its authority from an old statute employed in a novel
manner.” The court further held that the ETS “likely exceeds the federal government’s authority under the
Commerce Clause” because an individual’s choice to remain unvaccinated and forgo regular testing is a
“noneconomic inactivity” that falls squarely within the states’ police power to regulate. Ultimately, the
court concluded that the petitioners would be irreparably injured if a stay were not issued, that a stay
would not harm OSHA, and that a stay was firmly in the public interest.
In light of the other challenges to the ETS pending in the various courts of appeals, and consistent with 28
U.S.C. § 2112, which identifies procedures when an agency order is challenged in multiple appellate
courts, the Judicial Panel on Multistate Litigation randomly selected the Sixth Circuit to hear the
consolidated petitions for review of OSHA’s vaccination and testing standard. Under section 2112(a)(4),
the Sixth Circuit may modify, revoke, or extend a previously ordered stay, such as the nationwide stay
granted by the Fifth Circuit in BST Holdings.

Author Information

Jon O. Shimabukuro

Legislative Attorney




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LSB10658 · VERSION 3 · UPDATED

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