BST Holdings, et al. v. Occupational Safety and Health Administration, United States Department of Labor, No. 21-60845 (5th Cir.). Per curiam order entered November 6, 2021.
On Friday, November 5, both the U.S. Department of Labor, Occupational Safety and Health Administration (OSHA) and the U.S. Department of Health and Human Services, Center for Medicare and Medicaid Services (CMS) published regulations in the federal register respectively governing mandatory Covid-19 vaccination or testing and masking for employees of certain employers and governing mandatory vaccination within health care providing entities, the failure to comply with which would threaten federal financial support.
The same day, litigation challenging the labor based regulations was filed in four federal circuit courts of appeal. At this time, there are no known proceedings challenging the CMS regulation, although some have promised that litigation will be commenced.
The United States Court of Appeals for the Fifth Circuit, perceiving that the litigation presents “grave” issues of statutory and constitutional law, today stayed the mandate pending expedited briefing, to be completed by Tuesday, November 9.
The challengers in the Fifth Circuit are private employers impacted by the federal vaccine mandate, which governs entities with one hundred or more employees These private entities have been joined by several states.
The challengers argue that the OSHA Emergency Temporary Standard which is proffered as the premise for mandating vaccination does not and cannot support that demand, as the authority of OSHA is limited to workplace hazards and dangers which would place a virus beyond its scope.
Even if it could be seen that regulation might be possible, it would be constitutionally impermissible on these facts, the challengers assert, as the present federal vaccination scheme does not touch upon interstate commerce, as any exercise of such powers in the absence of a defined Congressional standard violates the non-delegation doctrine, and as the power to address questions of public health in the manner envisioned here is reserved to the states for administration under the Tenth Amendment of the United States Constitution. Moreover, the authority of the Department of Labor is constrained to administration of employment and work related matters, and it is beyond the scope of its powers to regulate individual health choices in the guise of imposing an obligation on employers.
Challenges to the new federal measures in other circuits raise additional claims, submitting to the courts that the vaccine mandate offends the First Amendment and the Religious Freedom Restoration Act.
In that there is a limited period of time within which to challenge these regulations, it is likely that these cases will unfold quickly. It is less likely, however, that any of the litigation will ‘skip a grade’ and proceed on an emergency basis to the U.S. Supreme Court. In recent weeks the Supreme Court has on three occasions declined to hear petitions for emergency relief concerning vaccination mandates.
All this unfolds amid multiple challenges in other forums, not the least of which are challenges to regulations extending mandated vaccination beyond federal employees to employees of federal contractors.
The “headline power” of the private employer mandate discussed here ought not obscure the significance of any of the other litigation concerning the sweeping exercise of federal powers premised on a perceived public health emergency in itself has been called into question.
Order of the United States Court of Appeals for the Fifth Circuit:
Challenges to the OSHA Emergency Temporary Standard (ETS):