Court Refuse to Lift Hold on OSHA Standard

A Reagan-Trump panel of the 5th Circuit Court of Appeals refused Friday afternoon to lift its stay of OSHA’s Emergency Temporary Standard (ETS) that directs employers to require workers to either receive the COVID-19 vaccine or be tested weekly and wear masks at work.

The 22-page court ruling was an angry political screed that bought into the notion that businesses would suffer “irreparable harm” and be “irreparably injured” by the OSHA standard. Judge Kurt Engelhardt, who penned the decision, called the standard “staggeringly overbroad,” but also underinclusive, and accused OSHA of forcing workers to chose between “their jobs and their jabs.”

It called the standard a one-size-fits-all sledgehammer, questioned OSHA’s authority to issue health standards, mislabeled the standard a “vaccine mandate” and accused OSHA of causing “workplace strife” and “untold economic upheaval” — even before it was issued.

If the 5th Circuit’s reasoning is allowed to stand, this would be one of the most serious and profound attacks on the Occupational Safety and Health Administration and on the federal government’s long established ability — and responsibility — to protect workers’ health and safety.

If the 5th Circuit’s reasoning is allowed to stand, this would be one of the most serious and profound attacks on the Occupational Safety and Health Administration and on the federal government’s long established ability — and responsibility — to protect workers’ health and safety.

This decision is far from the final word, however. Next week a lottery will be held to decide which Circuit will make a final decision about the standard before the loser inevitably appeals to the Supreme Court. The first thing that Court will decide is whether to extend the stay.

The Confined Space Analysis

First, a disclaimer: I am not now, nor have I ever been a lawyer. I may not be able to comment on many of the constitutional complexities of this decision, of which there are many. But I have been doing OSHA work for over 40 years, much of which required a sophisticated knowledge of the language and legal history of the Occupational Safety and Health Act  (OSHAct). I have spent much of the past 40 years listening to lawyers, arguing with lawyers and negotiating with lawyers, reading DOL briefs and court decisions. I therefore consider myself qualified to critique many aspects of this decision. For better or worse.

If any real lawyers want to add to this (or disagree), please use the comments below.

Even to a non-lawyer like me, there is so much objectionable to this decision that it’s hard to know where — or if — to begin. But begin I shall.

Does OSHA Cover Worker Health or Medical Considerations?

First, Judge Engelhardt displays an abject failure to understand the basics of the Occupational Safety and Health Act. (Engelhardt was a gift of Donald Trump.) One of his more astonishing statements in the decision is that “occupational safety administrations do not make health policy.”

Really? Did he fail to note that the agency in question is the “Occupational Safety and Health Administration, a creation of the Occupational Safety and Health Act, which means — even to the non-lawyer — that OSHA actually does make workplace health policy. That’s its job. Saying OSHA doesn’t make health policy is like saying the Department of Agriculture doesn’t make agriculture policy.

The Court also argues that OSHA’s imposition of “nearly $3 billion in compliance costs, involves broad medical considerations that lie outside of OSHA’s core competencies.”

Saying OSHA doesn’t make health policy is like saying the Department of Agriculture doesn’t make agriculture policy.

So protecting workers from the effects of COVID-19 by requiring safe and effective vaccinations or testing is based on medical considerations “that lie outside of OSHA’s core competencies?”  Really?

Perhaps Judge Engelhardt (again) neglected to read that part of the OSHAct where Congress states its intention “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions…by providing medical criteria which will assure insofar as practicable that no employee will suffer diminished health, functional capacity, or life expectancy as a result of his work experience”

Are Infectious Diseases Covered by OSHA?

The ruling argues that an airborne disease was not contemplated by the OSHAct’s language requiring standards to cover “substances or agents” that  are “toxic or physically harmful” and because it’s “widely present in society.”

None of this makes sense. COVID-19, like bloodborne pathogens that were the subject of OSHA’s 1991 bloodborne pathogens standard, can cause death, serious physical harm and is communicable in the workplace. In other words, they and many other infectious diseases are clearly “agents” that are “physically harmful,” even if COVID-19 (or AIDS) weren’t anticipated by the writers of the original law.

And COVID-19 would hardly be the first OSHA standard regulating a hazard that is also “widely present in society.” Look at noise, and, again, HIV or hepatitis B.

A Real Emergency?

The court also argues that OSHA has not established that there is a real emergency to justify an Emergency Temporary Standard. In order to issue an Emergency Temporary Standard. 760,000 deaths and counting – a significant proportion of which came from workplace infections, is apparently not sufficient to declare an emergency that would allow the agency to suspend the normal glacial regulatory process. According to the 5th Circuit panel:

The Mandate’s stated impetus—a purported “emergency” that the entire globe has now endured for nearly two years, and which OSHA itself spent nearly two months responding to—is unavailing as well.

So if it the pandemic has existed for two years and it took OSHA a whole two months after it was announced for OSHA to issue the ETS, then it can’t be a real emergency.

But any legal clerk doing a minimum of research would have observed that for a major OSHA standard, it can take the agency not months, or even years, but decades to finalize. Issuing a standard in two months is faster than the speed of light in OSHA-world.

The  Court also seems to have overlooked that the first year of the (not quite) two years was occupied by the Trump administration which not only refused to even consider issuing an Emergency Temporary Standard, but refused to issue more than a small handful of citations — and those few citations had absurdly low penalties.

A Court familiar with regulatory procedure should also understand that issuing a final workplace health standard — even an emergency standard — takes more than just penning a few lines of requirements and shoving it out the door the next morning.

OSHA first has to write regulatory text that is clear and enforceable. That may seem straightforward, but try it some time. It’s not easy.

And that’s not all. OSHA has a heavy legal burden to prove that COVID is a “grave danger,” that an emergency standard is necessary to protect workers and that the standard is economically and technologically feasible.  Had the judges bothered to look at the 450 page Preamble, they would have realized that it was herculean feat to get that done in just two months.

Ironically, much of the reason that OSHA takes so much time (and so many pages) assembling that evidence is to defend the standard against an inevitable lawsuit which the Court is now hearing.  The Court in essence is telling OSHA that it spent too much time preparing its argument for the court. (And there is very little evidence that the Court even read the Preamble.)

Does the Court Understand the Real World?

The court’s judgement also flies in the face of readily obtainable facts. For example, the court wrote that

“Private sector employers’ “standing to sue is obvious—the Mandate imposes a financial burden upon them by deputizing their participation in OSHA’s regulatory scheme, exposes them to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road.” (emphases added)

The Court concluded that the businesses suing OSHA

will also be irreparably harmed in the absence of a stay, whether by the business and financial effects of a lost or suspended employee, compliance and monitoring costs associated with the Mandate, the diversion of resources necessitated by the Mandate, or by OSHA’s plan to impose stiff financial penalties on companies that refuse to punish or test unwilling employees.

Where to begin?

Financial Burden: First, regarding the alleged financial burden on employers: OSHA is required by law to only issue standards that are economically feasible. OSHA found that this standard is economically feasible. The court didn’t really dispute the feasibility finding, preferring to on the nation-wide $3 billion cost. $3 billion may sound like a lot, but, but when divided among the millions of covered employers, comes to an estimated average cost to employers of about $35 per covered employee—or $94 per covered unvaccinated employee.

Is that a financial burden for most employers? Perhaps a small one. Is it economically infeasible? Not even close. For OSHA, “A standard is economically feasible when industries can absorb or pass on the costs of compliance without threatening industry’s long-term profitability or competitive structure.”

Just because some businesses may struggle and even go under as a result of an OSHA standard, the standard is still economically feasible as long as it doesn’t threaten an industry’s profitability or competitive structure. (Individual employers who feel unable to comply with a standard for certain acceptable reasons can apply for a variance.)

Finally,  the vax-or-test standard is not unique in “imposing” costs. Every OSHA standard “imposes” costs on employers. But only focusing on costs misses half the story.  There are also benefits from preventing injury, illness and death that always far outweigh the costs of OSHA standards. In fact, the OSHAct is designed to ensure that employers pay costs of a safe workplace rather than forcing employees to pay the cost in broken bodies and lost lives.

Severe Financial Penalties: Second, do OSHA penalties cause employers “severe Financial Risk if they refuse or fail to comply? No. The maximum penalty for a serious OSHA violation is $13,560 but due to normal reductions, the average OSHA penalty for a serious violation is only $5,427 — hardly “severe financial risk” for any medium or large company covered by this standard. Non-compliance with any OSHA standard risks a penalty.  Being penalized for violating a standard does not constitute irreparable harm for an employer.  Contracting COVID in the workplace, can cause irreparable harm for workers.

Workforce Decimation: Third, will the standard “Decimate their workforces?” Recent history clearly shows that most companies  or local governments that have imposed vaccine mandates (which this is not) have found that almost everyone complies. Resignations or suspensions have been minimal for most businesses. Out 0f 67,000 United Airlines employees facing a vaccine mandate, for example, only 320 refused to get vaccinated, less than one-half of one percent.

Hit the Road Jack: Fourth, does the OSHA standard “force” unwilling employees to comply or “hit the road?” Well, yes. That’s the thing about laws and regulations, as well as rules that businesses set for themselves. They force everyone to comply, even if some are “unwilling.” There is nothing uniquely mandatory about this standard. If a worker refused to wear a required hardhat or use fall protection equipment on a roof, it’s likely the employer will force that worker to “hit the road.”

Was OSHA “Staggeringly Overbroad” by Covering Almost All Workers?

The court states that OSHA was being “staggeringly overbroad” because it covers all workers (with the exception of exclusively remote and outdoor workers).  Engelhardt argues covering all workers violates OSHA’s authority: “All else equal, a 28 year-old trucker spending the bulk of his workday in the solitude of his cab is simply less vulnerable to COVID-19 than a 62 year-old prison janitor*.”

But as the Department of Labor brief opposing the stay points out, the OSHAct calls for OSHA to protect “workers.” There is no requirement to determine the unique exposure circumstances of each separate worker in every possible work situation:

The Act does not require OSHA to determine that “each” employee is exposed to grave danger, with the standard necessary to protect “each” employee from such danger. No rule could operate that way.

Was OSHA “Underinclusive” when it exempted small businesses?

The decision also criticizes OSHA for being “underinclusive” for not covering workplaces with fewer than 100 employees. I have made no secret of my dislike of this small business exemption, but the Court’s reasoning leaves me slack-jawed.

The court first argues that OSHA erred in making the cutoff, because workers in small companies face the same “grave danger” as workers in larger companies. This is obviously true.  But OSHA never stated that the small business exemption was made on the basis of “grave danger.” Rather, the OSHA small business exemption was based on OSHA’s inability to determine whether it was economically feasible for small businesses to comply.  OSHA Is requesting more information on small business feasibility for an eventual final standard.

Oddly, the Court later recognizes that OSHA used the feasibility requirement to justify the small business cutoff, but then states that the feasibility determination somehow shows that OSHA is not serious about claiming there is an emergency:

But this kind of thinking belies the premise that any of this is truly an emergency. Indeed, underinclusiveness of this sort is often regarded as a telltale sign that the government’s interest in enacting a liberty-restraining pronouncement is not in fact “compelling.”

In other words, OSHA is faced with a bit of a “heads I win, tails you lose” situation. Because OSHA based its decision on a feasibility finding, and is requesting more information for an eventual final standard, there is no emergency. But, of course, had OSHA failed to make a feasibility determination, the Court would have (justifiably) criticized the agency for for not considering economic feasibility.

So, if there is no real emergency, what is OSHA’s real motivation? According to the court, “not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary.”

“One Size Fits All” Sledgehammer

The Court accuses OSHA of ignoring legal decisions that require OSHA standard to be carefully crafted: “rather than a delicately handled scalpel, the Mandate is a one-size-fits-all sledgehammer.”

A one-size-fits-all sledgehammer

Now, the court may have reasons for accusing OSHA of not following the regulatory process carefully enough, but I just want to reflect for a moment on the Court’s use of that specific wording.

I’ve been doing this work for over 40 years and read a lot of industry materials opposing various OSHA standards.  Through that time, I can’t recall a single industry lawsuit, press release, Congressional testimony or fact sheet that failed to label every proposed OSHA standard a “one-size-fits-all” solution.

Even where an OSHA standard (like this one) requires employers to develop a health and safety program appropriate to that specific workplace, it’s somehow still a one-size-fits-all solution.  In fact, I’m pretty sure “One-Size-Fits-All” is the chapter heading of Lesson 1 in the the official anti-OSHA rulebook for aspiring corporate attorneys.

Did Political Ideology Factor into this Decision?

Eberhardt doesn’t even attempt to hide his conservative politics or his prejudice.

For example, judicial arguments often shorten the name of the regulation or problem in question for ease of reading and to save paper. (Anyone remember paper?) Instead of spelling out “OSHA Emergency Temporary Standard” all the time, the nickname chosen by the judges is “the Mandate,” obviously referring to a “vaccine mandate.”

This is clever. Vaccine mandates, as we all know, are very controversial and inflame passions. The problem is that OSHA did not issue a vaccine mandate.  OSHA issued a health and safety standard that requires either vaccinations or testing (and masking) — or nothing for workers who work exclusively remotely or outdoors. Nevertheless, the decision refers to OSHA’s non-existent “vaccine mandate” several times.

He also labels the standard a regulatory “scheme.” Now, the word “scheme” can just mean a simple plan, but more often, according to Merriam-Webster, scheme means “a plan or program of action especially : a crafty or secret one.” Implying that OSHA’s standard is “crafty or secret” hardly displays objectivity.

Eberhardt also writes that there is no way Congress “intended to authorize a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways.” (emphasis added.)

First, as we mentioned before, OSHA is not just a “workplace safety” administration; it is a workplace safety and health administration. Furthermore, worker health is a subset of public health (which is right in OSHA’s wheelhouse.) And the agency’s “pronouncements” affect only the nation’s workers, not “every member of society.” (unless they mean that “every member of society” benefits because OSHA saved their friends and family from dying of COVID infection acquired in the workplace.)

Finally, while there may be plenty of “deep recesses” in the federal government, a front-line agency like OSHA that has regulated and enforced safety and health conditions in almost every American workplace for 51 years, is not one of those “deep recesses.”

What Trump Said?

Somewhat inexplicably, the decision spends pages quoting Trump-era reasoning for not issuing an Emergency Temporary standard.  The court implies that it’s a bad thing that OSHA changed its mind, ignoring that fact that elections have consequences. Is every new administration bound by the decisions of the previous administration, even one of a different party and ideology?

And the Court seems to have conveniently forgotten that OSHA already issued an Emergency Temporary Standard last June, defying the objections of the previous administration.

Also, hazards can evolve over time. New information and evidence can emerge. New abatement measures can be developed.  We didn’t even have a vaccine until the waning days of the Trump administration, and when Trump flew into the sunset, “Delta” was just an airline, not a more infectious variant.

Conclusion: A Specter is Haunting America

The Court concludes by arguing that “a stay is firmly in the public interest. From economic uncertainty to workplace strife, the mere specter of the Mandate has contributed to untold economic upheaval in recent months.” Pretty spooky.

Public interest? What about the public’s interest in NOT getting COVID at work? What about the public’s interest in securing every worker’s right to a safe workplace?

I think it’s more accurate to sum it up this way:

“From scientific misinformation to political strife, the mere specter of Biden’s success has contributed to untold Republican upheaval in recent months.”

Stay tuned.



* It is somewhat telling that Engelhardt uses the example of a prison janitor, because in none of the states that the 5th Circuit covers (Texas, Louisiana and Mississippi) are employees of state prisons or county jails covered by OSHA, nor would they be covered by the ETS.