Whitman Legal Solutions, LLC

Most composers want people to listen to their music. Not Eric Satie, a prolific French composer active in the late 1800s and early 1900s.

Perhaps inspired by his work as a café pianist, Satie coined the term “Musique d’ameublement,” which roughly translates to “furniture music" to describe his genre of live background music. Satie expected his music to be "unconsciously absorbed" rather than consciously listened to in a concert setting.

 As the father of today's "elevator music," most of Satie's music is minimalist and soothing and is enjoyable for the performer and audience alike.

So, it seems odd that one of Satie’s best-known compositions is called “Vexations.” In keeping with Satie’s minimalist approach, the score for this piano composition consists of only four lines of music. And that is why the music is vexatious – Satie's instructions require that one page of music be played 840 times, amounting to an 18 to 19-hour performance.

Needless to say, “Vexations” is rarely performed. And when it has been performed, it usually requires a team of pianists performing in sequence, with each taking on only a fraction of the repetitions.

However, during the early days of the pandemic, pianist Igor Levit performed the entire work himself via a 15-hour live stream. It was an exercise in stamina and perhaps masochism, designed to bring attention to the “vexations” and challenges musicians faced during the pandemic.

Regardless of one’s politics or position on COVID-19 vaccine mandates, “Vexatious” is a word that also can be used to describe the situation with OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). ETS, which requires employers with over 100 employees to implement a written COVID-19 vaccination policy, became effective on November 5.  One week later, the United States Court of Appeals for the Fifth Circuit (5th Circuit) granted a motion to stay its effectiveness, leaving employers and employees in limbo. This article discusses ETS, the 5th Circuit order that delayed it, and what employers and employees should do going forward.

Background on ETS

ETS applies to most employers having 100 or more employees (Covered Employers). There are exceptions for many state and local governments and certain employers, such as healthcare,  subject to other OSHA COVID-19 requirements.

Covered Employees must:

  • Determine the vaccination status of each employee, including recordkeeping requirements

  • Provide up to four hours of paid leave per vaccine dose.

  • Provide paid leave for employees to recover from any side effects from the vaccine

  • Require unvaccinated employees to have weekly testing for COVID-19

  • Require unvaccinated employees to wear masks indoors and in vehicles

  • Require employees to inform their employer of positive COVID-19 test results

  • Remove employees with COVID-19 from the workplace

  • Provide employees with access to information about ETS and the employer’s policies in a language the employee can understand

  • Promptly report work-related COVID-19 hospitalizations and deaths to OSHA

ETS doesn’t necessarily apply to all of a Covered Employer’s employees. Employees who work from home or do not report to a workplace where others are present and employees who exclusively work outdoors need not comply. ETS also does not require employers to pay for testing or face coverings.

Existing exceptions to vaccination apply for medical reasons and as reasonable accommodations under civil rights laws. But exempt employees must comply with the testing requirement.

Although ETS was effective on November 5, 2021 after being published in the Federal Register, Covered Employers had to comply with most requirements by December 5, 2021. The deadline for complying with testing requirements was to be January 4, 2022. OSHA’s website provides Covered Employers with sample vaccination, testing, and face covering policies.

The Fifth Circuit Ruling

After ETS was published, several petitioners filed the case BST Holdings, L.L. C. v. Department of Labor (BST v. Dept. of Labor) in the 5th Circuit. Petitioners include several private companies, the American Family Association, at least one religious organization, and the States of Louisiana, Mississippi, South Carolina, and Utah. On November 6, 2021, the 5th Circuit stayed (delayed application of) ETS until the Court could conduct a hearing regarding an extended stay pending full judicial review.

It is usually difficult to obtain a stay (delay). The 5th Circuit notes that to receive a stay the petitioner must show:

  • Likelihood of success on the merits

  • That the petitioner will be irreparably harmed if no stay is granted

  • That the stay won’t substantially injure other parties interested in the case

  • The public interest

The 5th Circuit found that “[e]ach of these factors favors a stay….” 

The 5th Circuit deferred deciding whether ETS exceeded Congress’ authorization when creating the agency and whether Congress even could give OSHA the power it assumed under ETS. However, the Court did foreshadow its position on these core concerns by stating it was a “dubious assumption that the Mandate does pass constitutional muster….”

The 5th Circuit declared ETS as both overinclusive and underinclusive. In adopting a broad mandate, OSHA did not attempt to tailor the requirement to risks associated with job function. ETS treats "a security guard on a lonely night shift and a meatpacker working shoulder to shoulder in a cramped warehouse" the same. OSHA also showed no reason the risk to that meatpacker working for an employer with 98 employees is less than if their employer had 101 employees.

The Court uses strong language condemning ETS. Calling it a "sledgehammer" and characterizing it as the Biden Administration's attempt to find a "work-around" for imposing a national vaccine mandate.

Regulations typically undergo a notice and comment period for six months before they are adopted. The 5th Circuit noted that emergency regulations that bypass this process must reflect “new hazards" that place employees in "grave danger" and that the emergency regulation is necessary to prevent those grave dangers.

The Court observed that the pandemic has been going on for nearly two years, and OSHA spent two months developing ETS. Therefore, the Court was unpersuaded by OSHA’s claim that extraordinary emergency regulation was necessary to address concerns about COVID-19 transmission.

The Future of Vaccine Mandates

Although the stay throws a monkey wrench in the Biden Administration’s vaccine mandate program, the battle over ETS isn’t over. BST vs. Dept. of Labor was only the first of several cases objecting to ETS.

Because similar cases were filed in several federal circuit courts, the cases were combined. Under the Judicial Panel on Multidistrict Litigation, the Sixth Circuit (6th Circuit), which sits in Cincinnati and covers Michigan, Ohio, Kentucky, and Tennessee, “won” the lottery to hear the combined case.

Although it will be some time before a final decision, the 5th Circuit’s decision provides a glimpse into how a court might rule on the Constitutional issues. Congress established OSHA under the Commerce Clause. As its name implies, the Commerce Clause gives Congress the authority to regulate interstate commerce. Courts have interpreted Congress' authority broadly to allow laws affecting most aspects of commerce.

However, the 5th Circuit questioned whether decisions regarding vaccination, testing, or mask commerce, calling ETS “noneconomic.” The Court also cited century-old precedent holding that vaccine mandates fall under the states' police power, not Congress’ power to regulate Commerce.

Although the 5th Circuit states that ETS threatens “liberty interests,” BST v. Dept. of Labor isn’t about personal liberties. A decision on the merits might contribute to precedent regarding the line between regulation of interstate commerce and state police power. However, the final decision in BST v. Dept. of Labor isn’t likely to determine whether (or not) individuals have a constitutional right to object to vaccination or mask mandates.

As the 5th Circuit noted, vaccine and mask mandates have contributed to “economic uncertainty” and “workplace strife." The Court acknowledged government officials' frustration with individuals who decline vaccination. But the legal issues involved in the final decision aren’t easy ones. And like Satie’s 15-hour composition, it’s likely that individuals on every side of the vaccine and mask mandate issue are likely to feel vexation for some time to come.