NEW ORLEANS - A recent OSHA mandate requiring employees of covered employers to undergo COVID-19 vaccination or take weekly COVID-19 tests and wear a mask “violates the constitutional structure that safeguards our collective liberty,” according to the Fifth Circuit Court of Appeals.
Back in June 2020, OSHA determined an emergency temporary standard (ETS) was “not necessary” to “protect working people from occupational exposure to infectious disease, including COVID-19.”
Over the course of its 50 year history, OSHA has refused on several occasions to issue ETSs, even when under legal pressure, and has rarely done so.
On Nov. 5, however, OSHA issued a mandate requiring employees of covered employers to undergo COVID-19 vaccination or take weekly COVID-19 tests and wear a mask, provoking an array of petitioners to seek a stay.
On Nov. 6, the Fifth Circuit agreed to stay the mandate pending briefing and expedited judicial review. Six days later, justices reaffirmed their initial stay.
“On the dubious assumption that the Mandate does pass constitutional muster—which we need not decide today—it is nonetheless fatally flawed on its own terms,” justices opined, finding that OSHA “grossly exceeded” its statutory authority.
The Fifth Circuit concluded that OSHA’s mandate is “a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces.”
“The Constitution vests a limited legislative power in Congress,” the opinion states. “For more than a century, Congress has routinely used this power to delegate policymaking specifics and technical details to executive agencies charged with effectuating policy principles Congress lays down. In the mine run of cases—a transportation department regulating trucking on an interstate highway, or an aviation agency regulating an airplane lavatory—this is generally well and good.
“But health agencies do not make housing policy, and occupational safety administrations do not make health policy. In seeking to do so here, OSHA runs afoul of the statute from which it draws its power and, likely, violates the constitutional structure that safeguards our collective liberty.”
In addition to granting the stay, justices further ordered that OSHA take no steps to implement or enforce the mandate until further court order.
Case No. 21-60845