On November 12, 2021, a panel of 3 Appellate Judges of the U.S. Court of Appeals for the Fifth Circuit in New Orleans halted the COVID-19 vaccine and testing requirements (“the Mandate”) for private businesses.
The Occupational Safety and Health Administration (“OSHA”), attempted to implement a nation-wide COVID-19 vaccine mandate under the Emergency Temporary Standard (“ETS”), 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”.
In response, many states, along with several businesses, religious groups and individual citizens sought a temporary stay/injunction from the Court of the ETS, pending judicial review to determine if a permanent injunction of the ETS should be made.
The Test for a Stay/Injunction
The U.S. Court of Appeals considered four factors in granting a request for a stay pending judicial review:
- whether the stay applicant has made a strong showing that he is likely to succeed on the merits;
- whether the applicant will be irreparably injured absent a stay;
- whether issuance of the stay will substantially injure the other parties interested in the proceeding; and
- where the public interest lies.
Case likely to succeed on merits
The Court held that for an emergency regulation to be upheld, OSHA must show that the emergency regulation is necessary to protect employees from ‘grave danger’ due to exposure to ‘substances or agents’ and ‘toxic or physically harmful.’ The Court found the Mandate to be overbroad and unnecessary. The Court noted that it is unnecessary to implement a nation-wide Mandate that affects 2 out of 3 private-sector employees in the U.S. when the “ongoing threat of COVID-19 is more dangerous to some employees than to other employees.”
In addition, the Court disagreed with the Mandate’s assessment that COVID-19 transmission at the workplace is a ‘grave danger’ that warrants the ETS on several grounds. First, the Court held that an airborne virus is beyond the purview of the OSHA. Second, for a workplace to be considered a ‘grave danger,’ it is not sufficient that a chemical can cause cancer or kidney damage at a high level of exposure. The Court in particular noted that in the Mandate’s own assessment, the spread and effects of COVID-19 may range from ‘mild’ to ‘critical.’ Therefore, the Court found because COVID-19 is not particular to any workplace, widely present in society and non-life threatening to a vast majority of employees, the Mandate fails to meet the ETS threshold.
Furthermore, the Court found that the Mandate is both overinclusive – applying the Mandate to employers and employees in virtually all industries in the U.S. without taking into consideration the different workplace environments between industries – and underinclusive – questioning the rationale of not subjecting businesses with 98 or fewer employees with the Mandate as opposed to enforcing businesses with 100 employees with the Mandate. The Court characterized the Mandate as a “one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) and have more than a little bearing on workers’ varying degrees of susceptibility.”
Employers/Employees will be irreparably injured
The U.S. Court of Appeals held that the Mandate injures both affected employees and employers. First, the Court found that the enforcement of the Mandate will “substantially burden the liberty interests of reluctant individual recipients put to a choice between their job(s) and their jab(s).” It also added that in the absence of a stay, the Mandate will significantly overburden the employers in the form of significant financial costs associated with complying with the Mandate, require employers to divert a significant portion of their resources to implement the Mandate and the financial penalties imposed on companies that refuse to punish or test unwilling employees.
No substantial injury to government
The U.S. Court of Appeal held that a stay will not harm OSHA and any 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.”
Substantial public interest
The U.S. Court of Appeals held that not only are there significant financial consequences that come with the implementation and enforcement of the Mandate, but there are also constitutional and individual liberties at stake.
Historically, U.S. Court decisions impact the decisions that the Courts make in Canada.
Businesses should be particularly cautious with respect to implementing COVID-19 vaccination requirements and policies. This is especially so if the business is not required under the Reopening Ontario Act, 2020 to have a COVID-19 vaccination policy in place. Businesses should also be careful not to exceed the requirements of the Ontario Occupational Health & Safety Act as this may make the policy unreasonable, resulting in it likely being unenforceable.
If the Courts in Canada follow this decision, this would impact many businesses and may ease the burden on employers and employees to carry on business and earn a living.
Speak to an Employment Lawyer
If you require legal advice on how this decision may potentially impact your workplace or whether a vaccination policy is exceeding your requirements under the Ontario Occupational Health & Safety Act and how to avoid liability, contact us today to speak with one of our lawyers or call us at 905-477-7011 for assistance prior to taking any steps that may expose you to legal liability.
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Please note that this article is for informational purposes only and does not constitute legal advice.
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