Nov 15, 2021

Last Friday, the United States Court of Appeals for the Fifth Circuit issued a preliminary injunction staying enforcement of the Emergency Temporary Standard (ETS) previously issued by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA). The OSHA ETS required all employers of 100 or more employees to “develop, implement, and enforce a mandatory COVID-19 vaccination policy” and to require any workers who remain unvaccinated to “undergo weekly COVID-19 testing and wear a face covering at work.”

Immediately upon issuance of the ETS, a collection of private employers together with the states of Mississippi, South Carolina and Utah filed suit in the Fifth Circuit seeking to enjoin the mandate’s enforcement. On November 6, 2021, the Court entered a stay pending briefing and expedited judicial review. In that brief order, the Court noted that it found “cause to believe there are grave statutory and constitutional issues with the Mandate.” In its November 12 ruling enjoining the OSHA ETS, the Court expanded on its analysis. First, the Fifth Circuit found that the ETS “grossly exceeds OSHA’s statutory authority.” However, the Court did not limit its review to statutory over-reach. Rather, in the final pages of its recent decision the Court focused on its constitutional concerns surrounding mandatory vaccination. This constitutional analysis could prove to be the undoing of the Biden Administration’s Executive Order imposing a similar vaccine mandate on government contractor personnel.

Specifically, the Court noted that the OSHA ETS “likely exceeds the federal government’s authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the States’ police power.” (To issue the injunction, the Court needed to conclude that the petitioners would “likely succeed on the merits” of their claims, hence the use of “likely” rather than a more definitive statement from the Court.) Stated another way, while a State legislature could enact legislation for the public good – i.e., a vaccine mandate – the Commerce Clause does not provide the federal government such power. In sum, the Fifth Circuit held that the OSHA ETS “would far exceed current constitutional authority.”

The Court then continued to analyze the impact of the mandate on individuals. On this point, the Court noted that the OSHA ETS “threatens to substantially burden the liberty interests of reluctant individual recipients put to a choice between their job(s) and their jab(s).” The Court found that for “individual petitioners, the loss of constitutional freedoms ‘for even minimal periods of time … unquestionably constitutes irreparable injury” thereby supporting entry of the injunction. In sum, the Fifth Circuit held that the OSHA ETS “runs afoul of the statute from which it draws its power and, likely, violates the constitutional structure that safeguards our collective liberty.”

The latter conclusion spells potential trouble for the Biden Administration government contractor vaccine mandate. It has long been held that the President’s authority to issue executive orders must stem from the Constitution or a federal statute, and that these limits are judicially enforceable. For example, in Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952) the Supreme Court invalidated an order seizing and operating most of the nation’s steel mills. The Supreme Court stated: “… The President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.” See Youngstown, 343 U.S. at 585.

Put simply, if the Commerce Clause does not provide constitutional authority for OSHA to implement its vaccine or test mandate, it almost certainly does not provide authority for the broader, government contractor mandate that does not even provide for a testing option. Similarly, the concerns regarding the impact of mandates on constitutionally protected liberty interests are equally present with respect to the contractor mandate as they are under the OSHA ETS.

All of the above said, the contractor mandate has not (yet) been enjoined and contractors are well-counseled to continue to prepare for the January 4, 2022, deadline. It seems certain, however, that the Fifth Circuit’s opinion has provided a template for significant legal challenge to the contractor mandate.

 

–This update has been detailed by David Warner. 

David Warner heads Centre’s litigation, audit, and investigation practices. He is a seasoned trial lawyer and counselor with more than twenty years of experience in the resolution and litigation of complex business and employment disputes before state and federal courts and agencies. His practice is particularly focused on the government contractor, nonprofit, and hospitality industries.

Leave a Reply

Your email address will not be published. Required fields are marked *