After temporarily tapping the brakes on the Occupational Safety and Health Administration’s enforcement of its workplace vaccine mandate, the U.S. Court of Appeals for the Fifth Circuit ordered a complete halt late Friday.

The court ordered that OSHA take no steps to implement or enforce the mandate until a ruling on the many petitions requesting a permanent injunction, a process that could take months.

Most national news sources tended to focus on the fact that Judge Duncan Jones, the author of the opinion unanimously adopted by the three-judge panel, is a Trump appointee, somehow implying that the ruling was a foregone political conclusion.

However, the 22-page opinion provides both a statutory history of the extent and reach of OSHA’s regulatory power as well as a comprehensive legal analysis explaining as to why a stay is warranted.

The court also frequently cited OSHA officials’ and even President Joe Biden’s own words in support of the position that the OSHA emergency standard announced Nov. 5, which mandates companies employing 100 or more people to require COVID-19 vaccines or mandatory masks and weekly testing.

In June 2020, OSHA made a determination that an emergency temporary standard was not necessary “to protect working people from occupational exposure to infectious disease, including COVID-19.”

Biden himself said previously that he did not support mandatory vaccines.

“It is thus critical to note that the mandate makes no serious attempt to explain why OSHA and the President himself were against vaccine mandates before they were for one here,” Jones wrote in the opinion, noting that case law requires agencies to provide a detailed explanation for “contradicting a prior policy.”

Unique Review Process

While the traditional course of judicial review for federal laws require that a challenge first be filed in a federal district court, the statute authorizing OSHA to issue emergency standards in certain circumstances also provides for direct and immediate review by a federal appeals court.

On the afternoon the mandate was published, dozens of states, businesses, religious groups and individuals did just that.

The Fifth Circuit issued a temporary stay the next day, finding cause to believe there are grave statutory and constitutional issues with the mandate.”

The court ordered briefs be submitted early last week and issued its ruling late Friday, extending the stay until all issues are fully reviewed.

Emergency Standards Rare

Sidestepping OSHA’s lengthy rule-making process to issue an emergency standard without congressional or industry input is a rare and unusual action, the appeals court noted.

In fact, OSHA has issued only 10 emergency standards in its 50-year history, and five of those were overturned following successful court challenges.

To justify an emergency standard, OSHA must prove that employees are exposed to “grave danger from exposure to substances or agents determined to be toxic or physically harmful” and that the emergency standard is necessary to protect them.

The court noted that COVID-19 and other airborne virusus are not unique to the workplace and are thus “beyond the purview of an OSHA ETS in the first place.”

OSHA also failed to demonstrate that all workers at all the covered workplaces are exposed to the virus.

Employers Bear the Brunt

The court noted that employers “are the targets and bear the brunt” of the mandate.

If a stay was not issued and employers were forced to comply with a mandate that is ultimately overturned, those compliance costs would not be recoverable, the court said.

That massive financial impact to employers, as well as to employees forced to choose between “jabs or jobs,” are additional factors the court considered in determining that halting implementation is necessary until further court review.