BST Holdings, LLC v. OSHA

Court Ruling Stays Enforcement of OSHA’s Vaccination Requirement calling it a “sledgehammer” and that the promulgation “grossly exceeds OSHA’s statutory authority”

On November 12, 2021, the United States Court of Appeals for the Fifth Circuit rendered an opinion on a Motion for a Stay, brought by various Petitioners in the action entitled BST Holdings, LLC v. OSHA.

This case arises from “OSHA’s most recent Emergency Temporary Standard (ETS)—the Agency’s November 5, 2021 Emergency Temporary Standard (the “Mandate”)” which “requires all employers of 100 or more employees to “develop, implement, and enforce a mandatory COVID-19 vaccination policy” and require any workers who remain unvaccinated to “undergo [weekly] COVID-19 testing and wear a face covering at work in lieu of vaccination.”” See BST Holdings, L.L.C. v. OSHA , No. 21-60845, 2021 U.S. App. LEXIS 33698, at *5-6 (5th Cir. Nov. 12, 2021), citing 86 Fed. Reg. 61,402, 61,402. “On the afternoon of the Mandate’s publication, a diverse group of petitioners (including covered employers, States, religious groups, and individual citizens) moved to stay and permanently enjoin the mandate in federal courts of appeals across the nation.” Id. at *6. “On November 6, 2021, [The United States Court of Appeals for the Fifth Circuit] agreed to stay the Mandate pending briefing and expedited judicial review”, and after “[h]aving conducted that expedited review”, the Court ultimately reaffirmed its initial stay. Id. at *5-6.

In its opinion, The United States Court of Appeals for the Fifth Circuit analyzed each of the four factors of the traditional stay standard, in turn. Id. at *7. Those factors are:

“”(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.””

Id., citing Hilton v. Braunskill, 481 U.S. 770, 776, 107 S. Ct. 2113, 95 L. Ed. 2d 724 (1987).

First, in “consider[ing] whether the petitioners’ challenges to the Mandate are likely to succeed on the merits”, which it found in the affirmative, the Court indicated, inter alia, that “…[t]he Mandate’s strained prescriptions combine to make it the rare government pronouncement that is both 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, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat).” See BST Holdings, L.L.C. v. OSHA , No. 21-60845, 2021 U.S. App. LEXIS 33698, at *8-9 (5th Cir. Nov. 12, 2021.) The Court stated that “[the Mandate’s] promulgation grossly exceeds OSHA’s statutory

authority”, and further characterized the Mandate as “a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly “grave danger” the Mandate purports to address.” Id. at *9-10.

In considering the “necessity of the Mandate”, the Court found that “[t]he Mandate is staggeringly overbroad”, and in “[a]pplying to 2 out of 3 private-sector employees in America, in workplaces as diverse as the country itself, the Mandate fails to consider what is perhaps the most salient fact of all: the ongoing threat of COVID-19 is more dangerous to some employees than to other employees.” Id. at *16.

In addressing constitutional concerns of the Mandate, the Court found that “…the Mandate likely exceeds the federal government’s authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the States’ police power.” Id. at *21. In addition, the Court mentioned that “concerns over separation of powers principles cast doubt over the Mandate’s assertion of virtually unlimited power to control individual conduct under the guise of a workplace regulation.” Id. at *23.

Next, in assessing the second factor of the traditional stay standard, the Court found “that a denial of the petitioners’ proposed stay would do them irreparable harm.” Id. at *24. The Court indicated that “the Mandate threatens to substantially burden the liberty interests of reluctant individual recipients put to a choice between their job(s) and their jab(s).” Id.

Conversely, as to the third factor of the traditional stay standard, the Court found that “a stay will do OSHA no harm whatsoever” and “any abstract “harm” a stay might cause the Agency pales in comparison and importance to the harms the absence of a stay threatens to cause countless individuals and companies.” Id. at 25.

Finally, the Court found in assessing the fourth factor of the traditional stay standard that “a stay is firmly in the public interest.” Id. The Court stated that “[t]he public interest is also served by maintaining our constitutional structure and maintaining the liberty of individuals to make intensely personal decisions according to their own convictions—even, or perhaps particularly, when those decisions frustrate government officials.” Id. at 26.

The Court held that “health agencies do not make housing policy, and occupational safety administrations do not make health policy”, and, “[i]n 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.” Id., citing Ala. Ass’n of Realtors, 141 S. Ct. at 2488-90.

Following the above court ruling, on November 16, 2021, the U.S. Judicial Panel on Multidistrict Litigation decided that the 6th Circuit Court of Appeals, based in Cincinnati, Ohio, will preside over future litigation on the U.S. Department of Labor’s rule requiring companies with at least100 employees to mandate COVID-19 vaccinations or weekly tests. No doubt, the BST holding noted above may well set the benchmark standard, as it appears well reasoned. But, most likely, this issue may be heading to the U.S Supreme Court in the near future, which may have the final say on this issue.