Friday, December 17, 2021: This Week’s Surprising Vaccination Mandate Case Decisions
Three-Judge Panel of the Sixth Circuit Court of Appeals Overturns Fifth Circuit Injunction, Reinstates OSHA ETS
Late Friday, the United States Court of Appeals for the Sixth Circuit lifted the nationwide injunction issued by the Fifth Circuit in BST Holdings, L.L.C. v. OSHA, 17 F.4th 604 (5th Cir. 2021), and reinstated the OSHA ETS. The case is In re: MCP No. 165 (Massachusetts Building Trades Council, et al. v. OSHA, et al.), Case No. 21-7000 (6th Cir. December 17, 2021).
The week began with the Sixth Circuit deciding to hear challenges to the OSHA ETS via a three-judge panel. In an 8-8 decision, the Sixth Circuit denied en banc review of challenges to the OSHA ETS. “En banc” review would have required that all 16 judges on the Sixth Circuit hear and rule on the OSHA ETS. However, as the court’s rules required a majority of the judges to agree to en banc review, the Court decided instead to have the challenge heard by a three-judge panel. Opponents of the OSHA ETS concerned that a three-judge panel would be more likely to enforce the OSHA ETS would soon be proven prescient.
Deciding to dissolve the injunction the Fifth Circuit Court of Appeals previously issued, the 6th Circuit Panel in a 2-1 ruling found:
- OSHA was likely to be successful on the merits of its defense in support of the ETS.
- First, the vaccine mandate ETS was within OSHA’s statutory authority. The statute requires OSHA to issue an emergency standard to protect workers from a “grave danger” presented by “exposure to substances or agents determined to be toxic or physically harmful or from new hazards.” Here, the COVID-19 virus by definition is an infectious agent that is a “chemically, physically, or biologically active principle.” Thus, OSHA had long asserted authority to protect workers against infectious diseases such as COVID-19, including those “not unique to the workplace.”
- Second, OSHA’s issuance of the ETS is not an enormous expansion of its regulatory authority, and thus the ETS is an agency action subject to Chevron deference from the court. Indeed, the court ridiculed the Fifth Circuit’s reasoning that OSHA did not have authority to issue the ETS. In citing the Fifth Circuit’s own words that “occupational safety administrators do not make health policy” it included in the BTS opinion, the Sixth Circuit noted that the Fifth Circuit appeared not to have gotten to the third letter in OSHA’s own acronym given that “OSHA” stands for the Occupational Safety and Health Administration.
- Third, OSHA presented sufficient evidence in the record that substantially supported OSHA’s issuance of the ETS. OSHA established that the nature of the pandemic warranted emergency action (relying in part upon the existence of rising variants, such as the Omicron variant), OSHA was not required to establish a finding of exposure in all covered workplaces to establish COVID-19 was a grave danger to workers, and the fact vaccinated employees are significantly less likely to bring or spread COVID-19 established the ETS was essential to reduce the grave danger asserted.
- Fourth, the court did not find the constitutional challenges to the ETS persuasive. Because the ETS related to employers with 100 or more employees, such entities are clearly engaged in interstate commercial activity due to their size that Congress has the power to regulate. Furthermore, such power is one Congress delegated to OSHA given the history of OSHA’s involvement in protecting against infectious diseases in the workplace.
- Parties challenging the OSHA ETS did not establish that any injury to them outweighs the injury to the Government and the general public interest.
- The court determined the injuries asserted by parties challenging the ETS was purely speculative. The court cited the economic analysis OSHA conducted to demonstrate the feasibility of implementing the ETS addressed employer concerns related to compliance cost. Furthermore, employer proclamations related to the potential loss of employees did not take into account the accommodations, mask-and-test option, and exceptions explicitly permitted in the ETS that negate potential staffing loss.
Both the Biden Administration and parties challenging the ETS have already responded to the Sixth Circuit’s ruling. Articles reporting the decision have noted some of the petitioners challenging the ETS have already planned appeals to the U.S. Supreme Court. More importantly, in light of the decision, OSHA has lifted its suspension of implementing the ETS. To accommodate the prior suspension and delay resulting from the Fifth Circuit’s prior ruling, OSHA has exercised its enforcement discretion to extend the deadline for employer compliance with the ETS. As long as employers exercise reasonable, good faith efforts to comply with the ETS, OSHA would not issue draconian financial citations for noncompliance with any of the requirements in the ETS before January 10, 2022.
Furthermore, OSHA indicated it would not issue citations for noncompliance with the ETS’ testing requirements for non-vaccinated employees before February 9, 2022. Thus, employers have a little leeway to come into compliance should the U.S. Supreme Court not issue an emergency ruling again staying the ETS in response to any appeal of the Sixth Circuit ruling.
Fifth Circuit Court of Appeals Lifts Nationwide Injunction of CMS Vaccine Mandate and Limits Injunction Effect to 14 Plaintiff States
As we previously reported, the U.S. District Court for the Western District of Louisiana previously granted a nationwide injunction as to the CMS mandate requiring vaccination of staff of healthcare providers receiving Medicare and Medicaid from the federal government. This week, on appeal the 5th Circuit Court of Appeals limited the injunction to just the 14 states identified as plaintiffs in the case of Louisiana, et al. v. Becerra, et al.
Specifically, the Fifth Circuit agreed the government had not made a strong showing of likelihood of success on the merits due to the CMS vaccine mandate being a novel assertion of authority. The Court relied heavily on its own recent decision in BST Holdings, L.L.C. v. OSHA, 17 F.4th 604 (5th Cir. 2021), in which the Fifth Circuit enjoined the OSHA ETS mandating vaccination of employees of private employers.
However, the Court found no basis for the District Court to extend the injunction nationwide. The Fifth Circuit found that the District Court gave little justification for issuing a nationwide injunction, and noted that nationwide injunctions are outside the norm. As such, the Fifth Circuit limited the holding in Louisiana, et al. v. Becerra, et al. to just the 14 states named as plaintiffs in the action.
Texas Becomes 25th State Subject to Injunction Stopping Enforcement of the CMS Vaccine Mandate
On Wednesday, the U.S. District Court for the Northern District of Texas enjoined enforcement of the CMS vaccine mandate in Texas in Texas, et al. v. Becerra, et al., Case No. 2:21-cv-00229-Z (N.D. Tx. December 15, 2021). The court’s reasoning was substantially similar to the reasoning in the prior Louisiana, et al. v. Becerra, et al. and Missouri, et al. v. Biden, et al. decisions we previously discussed:
- Congress had failed to confer to the CMS power sufficient to mandate who a healthcare provider must hire or fire, which the vaccine mandate imposes. Specifically, the statutory provisions required CMS to mandate “facility standards” alone, and public health and safety regulation beyond facility standards is within the province of the states pursuant to their police powers.
- The CMS mandate violated the APA by failing to comply with the “notice and comment” procedure required of any final federal agency rule. The court rejected the contention that “good cause” existed to skip the notice and comment period given the amount of delay in implementing the mandate.
- The CMS mandate was arbitrary and capricious by: (1) relying on irrelevant data to support conclusory suppositions; (2) failing to account for potential staff and resource shortages arising as a result of the mandate; and (3) failing to allow for exemptions for workers with natural immunity, or who choose to test rather than take the vaccine, or who have no patient contact.
Given the foregoing, the court found that plaintiffs would suffer substantial, irreparable harm should the mandate be left in place to not only their sovereign and proprietary interests, but also in the resulting staffing shortages that would occur.
Biden Administration Seeks Emergency Stay of Injunctions Against the CMS Vaccine Mandate from the U.S. Supreme Court
Faced with injunctions that prohibited implementation of the CMS vaccine mandate as to healthcare workers in 25 states, the Biden Administration on Friday filed an emergency application to the United States Supreme Court for a stay of the injunctions federal courts have previously issued pending the Administration’s appeal of the injunction orders to the respective appellate circuit courts. Under the rules of the U.S. Supreme Court, a single justice may stay a district court order pending appeal to a U.S. Circuit Court of Appeal. Supreme Court Justice Alito is assigned to be the Justice responsible for Fifth Circuit Court of Appeals rulings. Justice Alito is one of the Supreme Court’s most conservative Justices and a firm believer in a limited form of federal government. Accordingly, CMS’ exercise of executive power to issue its mandate does not bode well on the face of it for CMS’ appeal to him.
In deciding whether to issue a stay, the U.S. Supreme Court considers: (1) whether four justices are likely to vote to grant certiorari if the Court of Appeals ultimately rules against the applicant; (2) whether five justices would then likely conclude the case was erroneously decided below; and (3) whether, on balancing the equities, the injury asserted by the Administration outweighs the harm to the other parties or the public.
The Administration’s emergency application is unsurprising, and a natural culmination of the Administration’s efforts to implement the CMS vaccine mandate in the face of the various injunctive orders ruling against implementation. Specifically, the Administration is attempting to force implementation of the CMS mandate while litigation proceeds against the mandate (whereas the injunctions issued against the CMS mandate maintains the current status quo by not requiring vaccination until final disposition of the cases against the mandate).
Readers may likely expect Justice Alito’s decision this week.