United States Court of Appeals

for the Fifth Circuit

No. 21-60845

BST Holdings, L.L.C.; RV Trosclair, L.L.C.; Trosclair 

Airline, L.L.C.; Trosclair Almonaster, L.L.C.; 

Trosclair and Sons, L.L.C.; Trosclair ; Trosclair, 

Incorporated; Trosclair Carrollton, L.L.C.; Trosclair 

Claiborne, L.L.C.; Trosclair Donaldsonville, L.L.C.; 

Trosclair Houma, L.L.C.; Trosclair Judge Perez, L.L.C.; 

Trosclair Lake Forest, L.L.C.; Trosclair Morrison, 

L.L.C.; Trosclair Paris, L.L.C.; Trosclair Terry, L.L.C.; 

Trosclair Williams, L.L.C.; Ryan Dailey; Jasand 

Gamble; Christopher L. Jones; David John Loschen; 

Samuel Albert Reyna; Kip Stovall; Answers in Genesis, 

Incorporated; American Family Association, 

Incorporated; Burnett Specialists; Choice Staffing, 

L.L.C.; Staff Force, Incorporated; Leadingedge 

Personnel, Limited; State of Texas; HT Staffing, 

Limited; doing business as HT Group; The State of 

Louisiana; Cox Operating, L.L.C.; Dis-Tran Steel, 

L.L.C.; Dis-Tran Packaged Substations, L.L.C.; Beta 

Engineering, L.L.C. Optimal Field Services, L.L.C.; The 

State of Mississippi; Gulf Coast Restaurant Group, 

Incorporated; The State of South Carolina; The State 

of Utah; Word of God Fellowship, Incorporated, doing 

busines as Daystar Television Network, 

Petitioners,

versus

Occupational Safety and Health Administration, 

United States Department of Labor; United States 

United States Court of Appeals

Fifth Circuit

FILED

November 12, 2021

Lyle W. Cayce

Clerk

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2

Department of Labor; Martin J. Walsh, Secretary, U.S. 

Department of Labor; Douglas Parker, in his Official 

Capacity as Assistant Secretary of Labor for 

Occupational Safety and Health,

Respondents.

Petition for Review of 

Occupational Safety and Health Administration

Emergency Temporary Standard

Before Jones, Duncan, and Engelhardt, Circuit Judges.

Kurt D. Engelhardt, Circuit Judge:

The Occupational Safety and Health Administration (OSHA) 

“reasonably determined” in June 2020 that an emergency temporary 

standard (ETS) was “not necessary” to “protect working people from 

occupational exposure to infectious disease, including COVID-19.” In re 

AFL-CIO, 2020 WL 3125324, at *1 (D.C. Cir. June 11, 2020). This was not 

the first time OSHA had done this; it has refused several times to issue ETSs 

despite legal action urging it do so. See, e.g., In re Int’l Chem. Workers Union, 

830 F.2d 369 (D.C. Cir. 1987) (per curiam). In fact, in its fifty-year history, 

OSHA has issued just ten ETSs.

1 Six were challenged in court; only one 

survived.2 The reason for the rarity of this form of emergency action is 

1 Cong. Rsch. Serv., Occupational Safety and Health 

Administration (OSHA): Emergency Temporary Standards (ETS) 

and COVID-19, at 34 tbl. A-1 (Nov. 10, 2021), available at 

https://crsreports.congress.gov/product/pdf/R/R46288.

2 It bears noting at the outset that most of the few ETSs issued by OSHA were 

immediately stayed pending merits review. See Asbestos Info. Ass’n/N. Am. v. OSHA, 727 

F.2d 415, 418 (5th Cir. 1984); Indus. Union Dep’t, AFL-CIO v. Bingham, 570 F.2d 965, 968 

(D.C. Cir. 1977); Taylor Diving Salvage Co. v. U.S. Dep’t of Lab., 537 F.2d 819, 820–21 (5th 

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simple: courts and the Agency have agreed for generations that 

“[e]xtraordinary power is delivered to [OSHA] under the emergency 

provisions of the Occupational Safety and Health Act,” so “[t]hat power 

should be delicately exercised, and only in those emergency situations which 

require it.” Fla. Peach Growers Ass’n v. U.S. Dep’t of Lab., 489 F.2d 120, 129–

30 (5th Cir. 1974).

This case concerns OSHA’s most recent ETS—the Agency’s 

November 5, 2021 Emergency Temporary Standard (the “Mandate”) 

requiring employees of covered employers to undergo COVID-19 

vaccination or take weekly COVID-19 tests and wear a mask.

3 An array of

petitioners seeks a stay barring OSHA from enforcing the Mandate during 

the pendency of judicial review. On November 6, 2021, we agreed to stay the 

Mandate pending briefing and expedited judicial review. Having conducted 

that expedited review, we reaffirm our initial stay.

I.

OSHA promulgated its much anticipated4 vaccine mandate on 

November 5, 2021. Framed as an ETS, the Mandate 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 

Cir. 1976) (per curiam); Fla. Peach Growers Ass’n v. U.S. Dep’t of Lab., 489 F.2d 120, 126 

(5th Cir. 1974).

3 See COVID-19 Vaccination and Testing; Emergency Temporary Standard, 86 

Fed. Reg. 61,402 (Nov. 5, 2021) (to be codified at 29 C.F.R. pts. 1910, 1915, 1917, 1918, 

1926, and 1928).

4 Debates over the Biden Administration’s forthcoming vaccine mandate roiled the 

country throughout much of the Fall. For obvious reasons, the Mandate affects every 

person in America in one way or another. 

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unvaccinated to “undergo [weekly] COVID-19 testing and wear a face 

covering at work in lieu of vaccination.” 86 Fed. Reg. 61,402, 61,402. 

On the afternoon of the Mandate’s publication, a diverse group of 

petitioners (including covered employers, States, religious groups, and 

individual citizens) moved to stay and permanently enjoin the mandate in 

federal courts of appeals across the nation. Finding “cause to believe there 

are grave statutory and constitutional issues with the Mandate,” we 

intervened and imposed a temporary stay on OSHA’s enforcement of the 

Mandate. For ease of judicial review, and in light of the pressing need to act 

immediately, we consolidated our court’s petitions under the case number 

captioned above.

Many of the petitioners are covered private employers within the 

geographical boundaries of this circuit.5 Their standing6 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.

5 Because these petitioners are the targets of the Mandate and bear the brunt of 

OSHA’s regulatory power, we principally analyze the petitions from their perspective. 

This is not to say that the claims of other petitioners such as States or individual citizens 

would be any less successful on a thorough analysis.

6 “Only one of the petitioners needs to have standing to permit us to consider the 

petition for review.” Massachusetts v. EPA, 549 U.S. 497, 518 (2007).

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The petitioners seek a stay—and ultimately a permanent injunction—

of the Mandate’s enforcement pending full judicial review of the Mandate. 

We address their request for a stay today.

7

II.

The “traditional stay factors . . . govern a request for a stay pending 

judicial review.” Nken v. Holder, 556 U.S. 418, 426 (2009). Under the 

traditional stay standard, a court considers four factors: “(1) whether the stay 

applicant has made a strong showing that he is likely to succeed on the merits; 

(2) whether the applicant will be irreparably injured absent a stay; (3) 

whether issuance of the stay will substantially injure the other parties 

interested in the proceeding; and (4) where the public interest lies.” Hilton 

v. Braunskill, 481 U.S. 770, 776 (1987).

Each of these factors favors a stay here.

A.

We first consider whether the petitioners’ challenges to the Mandate 

are likely to succeed on the merits. For a multitude of reasons, they are. 

7 Our November 6, 2021 stay order preserved the status quo during the pendency 

of briefing. The unusual procedural posture of this case makes for an unusual process. 

Ordinarily, a federal plaintiff aggrieved by an adversary’s threatened course of action must 

go to a district court to seek injunctive relief at the outset. In this ordinary scenario, a 

preliminary injunction precedes a permanent injunction, and trial-court review precedes 

appellate review. But this is not a typical case. Here, the statute giving OSHA the power to 

issue emergency temporary standards like the Mandate also provides for direct and 

immediate judicial review in “the United States court of appeals for the circuit wherein” 

“[a]ny person who may be adversely affected by” an ETS “resides or has his principal 

place of business.” See 29 U.S.C. § 655(f). Satisfied of our jurisdiction to proceed under 

that provision, but mindful of our unusual procedural posture, we apply the traditional 

factors for a stay pending judicial review and draw factual support from the attachments to 

the pleadings, uncontested facts, and judicial notice.

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We begin by stating the obvious. The Occupational Safety and Health 

Act, which created OSHA, was enacted by Congress to assure Americans

“safe and healthful working conditions and to preserve our human 

resources.” See 29 U.S.C. § 651 (statement of findings and declaration of 

purpose and policy). It was not—and likely could not be, under the 

Commerce Clause and nondelegation doctrine8—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. Cf. Ala. Ass’n 

of Realtors v. HHS, 141 S. Ct. 2485, 2488–90 (2021) (per curiam).

On the dubious assumption that the Mandate does pass constitutional 

muster—which we need not decide today9—it is nonetheless fatally flawed 

on its own terms. Indeed, the Mandate’s strained prescriptions combine to 

make it the rare government pronouncement that is both overinclusive

(applying to employers and employees in virtually all industries and 

workplaces in America, with little attempt to account for the obvious 

differences between the risks facing, say, a security guard on a lonely night 

shift, and a meatpacker working shoulder to shoulder in a cramped

warehouse) and underinclusive (purporting to save employees with 99 or 

more coworkers from a “grave danger” in the workplace, while making no 

attempt to shield employees with 98 or fewer coworkers from the very same 

8 The nondelegation doctrine constrains Congress’s ability to delegate its 

legislative authority to executive agencies. See, e.g., Mistretta v. United States, 488 U.S. 361, 

371–72 (1989) (“The Constitution provides that ‘[a]ll legislative Powers herein granted 

shall be vested in a Congress of the United States’ . . . and we have long insisted that ‘the 

integrity and maintenance of the system of government ordered by the Constitution’ 

mandate that Congress generally cannot delegate its legislative power to another Branch.” 

(first quoting U.S. Const. art. I, § 1; then quoting Field v. Clark, 143 U.S. 649, 692 

(1892))).

9 But see infra subsection II.A.2.f.

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threat). The Mandate’s stated impetus—a purported “emergency” that the 

entire globe has now endured for nearly two years,10 and which OSHA itself 

spent nearly two months responding to11—is unavailing as well. And its 

promulgation grossly exceeds OSHA’s statutory authority.

1.

After the President voiced his displeasure with the country’s 

vaccination rate in September,12 the Administration pored over the U.S. 

Code in search of authority, or a “work-around,”13 for imposing a national

10 As Justice Gorsuch recently observed, society’s interest in slowing the spread of 

COVID-19 “cannot qualify as [compelling] forever,” for “[i]f human nature and history 

teach anything, it is that civil liberties face grave risks when governments proclaim 

indefinite states of emergency.” Does 1–3 v. Mills, --- S. Ct. ---, 2021 WL 5027177, at *3 

(Oct. 29, 2021) (Gorsuch, J., dissenting); see also Fla. Peach Growers, 489 F.2d at 131 

(situation ongoing for “last several years . . . fail[ed] to qualify for [OSHA] emergency 

measures”).

11 The President announced his intention to impose a national vaccine mandate on 

September 9, 2021. See, e.g., Kevin Liptak & Kaitlan Collins, Biden Announces New Vaccine 

Mandates that Could Cover 100 Million Americans, CNN (Sept. 9, 2021), 

https://www.cnn.com/2021/09/09/politics/joe-biden-covid-speech/index.html

(“‘We’ve been patient, but our patience is wearing thin, and your refusal has cost all of us,’ 

Biden said, his tone hardening toward Americans who still refuse to receive a vaccine 

despite ample evidence of their safety and full approval of one . . . .”). OSHA issued the 

Mandate nearly two months later, on November 5, 2021, and the Mandate itself 

prominently features yet another two-month delay. One could query how an “emergency” 

could prompt such a “deliberate” response. In similar cases, we’ve held that OSHA’s 

failure to act promptly “does not conclusively establish that a situation is not an 

emergency,” but “may be evidence that a situation is not a true emergency.” Asbestos Info., 

727 F.2d at 423 (emphasis added).

12 See supra note 11.

13 On September 9, 2021, White House Chief of Staff Ron Klain retweeted MSNBC 

anchor Stephanie Ruhle’s tweet that stated, “OSHA doing this vaxx mandate as an 

emergency workplace safety rule is the ultimate work-around for the Federal govt to require 

vaccinations.” See, e.g., Pet’rs Burnett Specialists, Choice Staffing, LLC, and Staff Force 

Inc.’s Reply Brief at 4 (emphasis added).

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vaccine mandate. The vehicle it landed on was an OSHA ETS. The statute 

empowering OSHA allows OSHA to bypass typical notice-and-comment 

proceedings for six months by providing “for an emergency temporary 

standard to take immediate effect upon publication in the Federal Register” 

if it “determines (A) that employees are exposed to grave danger from 

exposure to substances or agents determined to be toxic or physically harmful 

or from new hazards, and (B) that such emergency standard is necessary to 

protect employees from such danger.” 29 U.S.C. § 655(c)(1).

As the name suggests, emergency temporary standards “are an 

‘unusual response’ to ‘exceptional circumstances.’” Int’l Chem. Workers, 

830 F.2d at 371 (quoting Pub. Citizen Health Rsch. Grp. v. Auchter, 702 F.2d 

1150, 1155 (D.C. Cir. 1983)). Thus, courts have uniformly observed that 

OSHA’s authority to establish emergency temporary standards under 

§ 655(c) “is an ‘extraordinary power’ that is to be ‘delicately exercised’ in 

only certain ‘limited situations.’” Id. at 370 (quoting Pub. Citizen, 702 F.2d 

at 1155).14

But the Mandate at issue here is anything but a “delicate[] exercise[]” 

of this “extraordinary power.” Cf. Pub. Citizen, 702 F.2d at 1155. Quite the 

opposite, rather than a delicately handled scalpel, the Mandate is a one-sizefits-all sledgehammer that makes hardly any attempt to account for 

differences in workplaces (and workers) that have more than a little bearing 

on workers’ varying degrees of susceptibility to the supposedly “grave 

danger” the Mandate purports to address. 

14 The Agency has thus conceded in the past that “[t]he OSH Act does not 

authorize OSHA to issue sweeping health standards to address entire classes of known and 

unknown infectious diseases on an emergency basis without notice and comment.” See 

Department of Labor’s Resp. to the Emergency Pet. for a Writ of Mandamus at 33–34, In 

re AFL-CIO, No. 20-1158 (D.C. Cir. May 29, 2020) [hereinafter OSHA D.C. Circuit Brief].

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2.

Thus, as § 655(c)(1) plainly provides, to be lawfully enacted, an ETS 

must: (1) address “substances or agents determined to be toxic or physically 

harmful”—or “new hazards”—in the workplace; (2) show that workers are

exposed to such “substances,” “agents,” or “new hazards” in the 

workplace; (3) show that said exposure places workers in “grave danger”; 

and (4) be “necessary” to alleviate employees’ exposure to gravely 

dangerous hazards in the workplace. As we have noted in the past, the 

precision of this standard makes it a difficult one to meet. See Fla. Peach 

Growers, 489 F.2d at 130 (observing that OSHA’s ETS authority “requires 

determination of danger from exposure to harmful substances, not just a 

danger of exposure; and, not exposure to just a danger, but to a grave danger; 

and, not the necessity of just a temporary standard, but that an emergency 

[temporary] standard is necessary”).15

(a)

In its brief, Texas makes a compelling argument that § 655(c)(1)’s 

neighboring phrases “substances or agents” and “toxic or physically 

harmful” place an airborne virus beyond the purview of an OSHA ETS in the 

first place. To avoid “giving unintended breadth to the Acts of Congress,” 

courts “rely on the principle of noscitur a sociis—a word is known by the 

company it keeps.” Yates v. United States, 574 U.S. 528, 543 (2015) (cleaned 

up). Here, OSHA’s attempt to shoehorn an airborne virus that is both widely 

present in society (and thus not particular to any workplace) and non-life15 In prior litigation, OSHA acknowledged that many “workplaces” covered by a 

COVID-19 ETS “are not merely workplaces,” but are also “stores, restaurants, and other 

places occupied by workers and the general public alike, in which the measures called for 

require a broader lens—and at times a broader mandate—than available to OSHA.” See 

OSHA D.C. Circuit Brief at 20.

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threatening to a vast majority of employees into a neighboring phrase 

connoting toxicity and poisonousness is yet another transparent stretch. Other 

cases involving OSHA (though not ETSs per se) shed further light on the 

intended meaning of these terms. See, e.g., UAW v. OSHA, 938 F.2d 1310, 

1314 (D.C. Cir. 1991). See generally Indus. Union Dep’t, AFL-CIO v. Am. 

Petroleum Inst., 448 U.S. 607 (1980). Any argument OSHA may make that 

COVID-19 is a “new hazard[]” would directly contradict OSHA’s prior 

representation to the D.C. Circuit that “[t]here can be no dispute that 

COVID-19 is a recognized hazard.” See OSHA D.C. Circuit Brief at 25 

(emphasis added).

(b)

A natural first step in enacting a lawful ETS is to show that employees 

covered by the ETS are in fact exposed to the dangerous substances, agents, 

or hazards at issue—here, COVID-19. See, e.g., Int’l Chem. Workers, 830 F.2d 

at 371 (noting OSHA’s stated view “that a finding of ‘grave danger’ to 

support an ETS be based upon exposure in actual levels found in the 

workplace”). As it pertains to the vast majority of private employees covered 

by the Mandate, however, OSHA fails to meet this threshold burden. In 

defending the Mandate before this court, the Government credits OSHA 

with “describ[ing] myriad studies showing workplace [COVID-19] ‘clusters’ 

and ‘outbreaks’ and other significant ‘evidence of workplace transmission’ 

and ‘exposure.’” See Resp’ts’ Opp’n to Emergency Stay Mot. at 8. But this 

misses the mark, as OSHA is required to make findings of exposure—or at 

least the presence of COVID-19—in all covered workplaces. 

Of course, OSHA cannot possibly show that every workplace covered 

by the Mandate currently has COVID-positive employees, or that every 

industry covered by the Mandate has had or will have “outbreaks.” As 

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discussed below, this kind of overbreadth plagues the Mandate generally. See 

infra subsection II.A.2.d.

(c)

Equally problematic, however, is that it remains unclear that COVID19—however tragic and devastating the pandemic has been—poses the kind 

of grave danger § 655(c)(1) contemplates. See, e.g., Int’l Chem. Workers, 830 

F.2d at 371 (noting that OSHA itself once concluded “that to be a ‘grave 

danger,’ it is not sufficient that a chemical, such as cadmium, can cause cancer

or kidney damage at a high level of exposure” (emphasis added)). For starters, 

the Mandate itself concedes that the effects of COVID-19 may range from 

“mild” to “critical.” As important, however, the status of the spread of the 

virus has varied since the President announced the general parameters of the 

Mandate in September. (And of course, this all assumes that COVID-19 

poses any significant danger to workers to begin with; for the more than 

seventy-eight percent16 of Americans aged 12 and older either fully or partially 

inoculated against it, the virus poses—the Administration assures us—little 

risk at all.) See, e.g., 86 Fed. Reg. 61,402, 61,402–03 (“COVID-19 vaccines 

authorized or approved by the [FDA] effectively protect vaccinated 

individuals against severe illness and death from COVID-19.”).

The Administration’s prior statements in this regard further belie the 

notion that COVID-19 poses the kind of emergency that allows OSHA to take 

the extreme measure of an ETS. In reviewing agency pronouncements, 

courts need not turn a blind eye to the statements of those issuing such 

pronouncements. See, e.g., FCC v. Fox Television Stations, Inc., 556 U.S. 502, 

515 (2009). In fact, courts have an affirmative duty not to do so. It is thus 

16 See CDC, Covid Data Tracker, https://covid.cdc.gov/covid-datatracker/#datatracker-home. 

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critical to note that the Mandate makes no serious attempt to explain why 

OSHA and the President himself17were against vaccine mandates before they 

were for one here. See, e.g., Occupational Exposure to Bloodborne Pathogens, 

54 Fed. Reg. 23,042, 23,045 (May 30, 1989) (“Health in general is an 

intensely personal matter. . . . OSHA prefers to encourage rather than try to 

force by governmental coercion, employee cooperation in [a] vaccination 

program.”); Letter from Loren Sweatt, Principal Deputy Assistant Sec’y, 

OSHA, to Richard L. Trumka, President, AFL-CIO at 3 (May 29, 2020) 

[hereinafter Sweatt Letter] (acknowledging as a general matterthat it “would 

not be necessary for OSHA to issue an ETS to protect workers from 

infectious diseases” because “OSHA lacks evidence to conclude that all 

infectious diseases to which employees may be exposed at a workplace 

constitute a ‘grave danger’ for which an ETS is an appropriate remedy”). 

Because it is generally “arbitrary or capricious” to “depart from a prior 

policy sub silentio,” agencies must typically provide a “detailed explanation” 

for contradicting a prior policy, particularly when the “prior policy has 

engendered serious reliance interests.” FCC v. Fox, 556 U.S. at 515. OSHA’s 

reversal here strains credulity, as does its pretextual basis.

18 Such 

shortcomings are all hallmarks of unlawful agency actions.

To be sure, “OSHA’s assessment of . . . scientifically complex [facts] 

and its balancing of the competing policies that underlie the decision whether 

to issue an ETS . . . are entitled to great deference,” but this is not a case 

17 In December of 2020, the President was quoted as saying, “No I don’t think 

[vaccines] should be mandatory.” See, e.g., Jacob Jarvis, Fact Check: Did Joe Biden Reject 

Idea of Mandatory Vaccines in December 2020, Newsweek (Sept. 10, 2021), 

https://www.newsweek.com/fact-check-joe-biden-no-vaccines-mandatory-december2020-1627774. 

18 See supra note 13 (Klain endorsement of the term “work-around”).

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where any amount of deference would make a bit of difference. Int’l Chem. 

Workers, 830 F.2d at 371. 

(d)

We next consider the necessity of the Mandate. The Mandate is 

staggeringly overbroad. Applying to 2 out of 3 private-sector employees in 

America, in workplaces as diverse as the country itself, the Mandate fails to 

consider what is perhaps the most salient fact of all: the ongoing threat of 

COVID-19 is more dangerous to some employees than to other employees. 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. Likewise, a naturally immune unvaccinated worker is 

presumably at less risk than an unvaccinated worker who has never had the 

virus. The list goes on, but one constant remains—the Mandate fails almost 

completely to address, or even respond to, much of this reality and common 

sense.

Moreover, earlier in the pandemic, the Agency recognized the 

practical impossibility of tailoring an effective ETS in response to COVID19. See OSHA D.C. Circuit Brief at 16, 17, 21, 26 (“Based on substantial 

evidence, OSHA determined that an ETS is not necessary both because there 

are existing OSHA and non-OSHA standards that address COVID-19 and 

because an ETS would actually be counterproductive. . . . To address all 

employers and to do so with the requisite dispatch, an ETS would at best be 

an enshrinement of these general and universally known measures that are 

already enforceable through existing OSHA tools that require employers to 

assess and address extant hazards. OSHA’s time and resources are better 

spent issuing industry-specific guidance that adds real substance and permits 

flexibility as we learn more about this virus. Given that we learn more about 

COVID-19 every day, setting rules in stone through an ETS (and later a 

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permanent rule) may undermine worker protection by permanently 

mandating precautions that later prove to be inefficacious. . . . [A]n ETS 

could only enshrine broad legal standards that are already in place or direct 

employers to develop COVID-19 response plans specific to their businesses, 

something employers are already doing. Such a step would be superfluous at 

best and could be counterproductive to ongoing state, local, and private 

efforts. . . . Additionally, employers may choose any effective method to 

abate a recognized hazard under the general duty clause. Contrary to AFLCIO’s argument, this flexibility is likely to improve worker safety, because 

employers must choose a means of abatement that eliminates the hazard or 

materially reduces it to the extent feasible.”). OSHA itself admitted that “an 

ETS once issued could very well become ineffective or counterproductive, as 

it may be informed by incomplete or ultimately inaccurate information.” Id. 

at 30, 32–33 (acknowledging further that “[a]dequate safeguards for workers 

could differ substantially based on geographic location, as the pandemic has 

had dramatically different impacts on different parts of the country. State and 

local requirements and guidance on COVID-19 are thus critical to employers 

in determining how to best protect workers, and OSHA must retain flexibility 

to adapt its advice regarding incorporation of such local guidance, where 

appropriate. . . . [A]n ETS meant to broadly cover all workers with potential 

exposure to COVID-19—effectively all workers across the country—would 

have to be written at such a general level that it would risk providing very 

little assistance at all”).

In light of this immense complexity, one might naturally ask the 

Agency—is this situation truly amenable to a one-size-fits-all Mandate? The 

likely answer may be why OSHA has in the past “determined that the best 

approach for responding to the pandemic is to enforce the existing OSH Act 

requirements that address infectious disease hazards, while also issuing 

detailed, industry-specific guidance,” which is generally “more effective 

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than promulgating a rigid set of requirements for all employers in all 

industries based on limited information.” See Sweatt Letter at 2. In sum, as 

OSHA itself has previously acknowledged, an ETS appears to be a “poorlysuited approach for protecting workers against [COVID-19] because no 

standard that covers all of the Nation’s workers would protect all those 

workers equally.” See id. at 9.

At the same time, the Mandate is also underinclusive. The most 

vulnerable worker in America draws no protection from the Mandate if his 

company employs 99 workers or fewer. The reason why? Because, as even 

OSHA admits, companies of 100 or more employers will be better able to 

administer (and sustain) the Mandate. See 86 Fed. Reg. 61,402, 61,403 

(“OSHA seeks information about the ability of employers with fewer than 

100 employees to implement COVID-19 vaccination and/or testing 

programs.”). That may be true. 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.” Cf. Church 

of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 542–46 (1993)

(city’s ban on religious animal sacrifice but corresponding allowance of other 

activities similarly endangering public health belied its purportedly 

“compelling” interest in safe animal disposal practices). The underinclusive 

nature of the Mandate implies that the Mandate’s true purpose is not to 

enhance workplace safety, but instead to ramp up vaccine uptake by any 

means necessary.

19

19 The Mandate is also underinclusive in the solutions it proposes. Indeed, even in 

its fullest force, the Mandate cannot prevent vaccinated employees from spreading the 

virus in the workplace, or prevent unvaccinated employees from spreading the virus in 

between weekly tests.

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(e)

If the deficiencies we’ve already covered aren’t enough, other 

miscellaneous considerations seal the Mandate’s fate. For one, “[t]he 

Agency cannot use its ETS powers as a stop-gap measure,” Asbestos Info., 727 

F.2d at 422, but concedes that that is precisely what the Mandate is intended 

to do here. See 86 Fed. Reg. 61,402, 61,434–35 (admitting that “[c]rafting a 

multi-layered standard that is comprehensive and feasible for all covered 

work settings, including mixed settings of vaccinated and unvaccinated 

workers, is an extraordinarily challenging and complicated undertaking, yet 

the grave danger that COVID-19 poses to unvaccinated workers obliges the 

agency to act as quickly as possible”). For another, courts have consistently 

recognized that the “protection afforded to workers [by an ETS] should 

outweigh the economic consequences to the regulated industry,” Asbestos 

Info., 727 F.2d at 423, but for all the reasons we’ve previously noted, the 

Mandate flunks a cost-benefit analysis here. 

(f)

It lastly bears noting that the Mandate raises serious constitutional 

concerns that either make it more likely that the petitioners will succeed on 

the merits, or at least counsel against adopting OSHA’s broad reading of 

§ 655(c) as a matter of statutory interpretation.

First, the Mandate likely exceeds the federal government’s authority 

under the Commerce Clause because it regulates noneconomic inactivity that 

falls squarely within the States’ police power. A person’s choice to remain 

unvaccinated and forgo regular testing is noneconomic inactivity. Cf. NFIB 

v. Sebelius, 567 U.S. 519, 522 (2012) (Roberts, C.J., concurring); see also id. at 

652–53 (Scalia, J., dissenting). And to mandate that a person receive a vaccine 

or undergo testing falls squarely within the States’ police power. Zucht v. 

King, 260 U.S. 174, 176 (1922) (noting that precedent had long “settled that 

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it is within the police power of a state to provide for compulsory 

vaccination”); Jacobson v. Massachusetts, 197 U.S. 11, 25–26 (1905) (similar). 

The Mandate, however, commandeers U.S. employers to compel millions of 

employees to receive a COVID-19 vaccine or bear the burden of weekly 

testing. 86 Fed. Reg. 61,402, 61,407, 61,437, 61,552. The Commerce Clause 

power may be expansive, but it does not grant Congress the power to regulate 

noneconomic inactivity traditionally within the States’ police power. See 

Sebelius, 567 U.S. at 554 (Roberts, C.J., concurring) (“People, for reasons of 

their own, often fail to do things that would be good for them or good for 

society. Those failures—joined with the similar failures of others—can 

readily have a substantial effect on interstate commerce. Under the 

Government’s logic, that authorizes Congress to use its commerce power to 

compel citizens to act as the Government would have them act.”); see also 

Bond v. United States, 572 U.S. 844, 854 (2014) (“The States have broad 

authority to enact legislation for the public good—what we have often called 

a ‘police power.’ . . . The Federal Government, by contrast, has no such 

authority. . . .” (citations omitted)). Indeed, the courts “always have rejected 

readings of the Commerce Clause . . . that would permit Congress to exercise 

a police power.” United States v. Lopez, 514 U.S. 549, 584 (1995) (Thomas, 

J., concurring). In sum, the Mandate would far exceed current constitutional 

authority.

Second, concerns over separation of powers principles cast doubt over 

the Mandate’s assertion of virtually unlimited power to control individual 

conduct under the guise of a workplace regulation. As Judge Duncan points 

out, the major questions doctrine confirms that the Mandate exceeds the 

bounds of OSHA’s statutory authority. Congress must “speak clearly if it 

wishes to assign to an agency decisions of vast economic and political 

significance.” Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014) (cleaned 

up). The Mandate derives its authority from an old statute employed in a 

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novel manner,20 imposes nearly $3 billion in compliance costs, involves broad 

medical considerations that lie outside of OSHA’s core competencies, and 

purports to definitively resolve one of today’s most hotly debated political 

issues. Cf. MCI Telecomms. Corp. v. AT&T, 512 U.S. 218, 231 (1994) 

(declining to hold that the FCC could eliminate telecommunications ratefiling requirements); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 

120, 159–60 (2000) (declining to hold that the FDA could regulate 

cigarettes); Gonzales v. Oregon, 546 U.S. 243, 262 (2006) (declining to allow 

DOJ to ban physician-assisted suicide). There is no clear expression of 

congressional intent in § 655(c) to convey OSHA such broad authority, and 

this court will not infer one. Nor can the Article II executive breathe new 

power into OSHA’s authority—no matter how thin patience wears.

At the very least, even if the statutory language were susceptible to 

OSHA’s broad reading—which it is not—these serious constitutional 

concerns would counsel this court’s rejection of that reading. Jennings v. 

Rodriguez, 138 S. Ct. 830, 836 (2018).

* * *

Accordingly, the petitioners’ challenges to the Mandate show a great 

likelihood of success on the merits, and this fact weighs critically in favor of 

a stay.

B.

It is clear that a denial of the petitioners’ proposed stay would do them 

irreparable harm. For one, the Mandate threatens to substantially burden the 

20 Here, it is simply unlikely that Congress assigned authority over such a 

monumental policy decision to OSHA—hard hats and safety goggles, this is not.

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liberty interests21 of reluctant individual recipients put to a choice between 

their job(s) and their jab(s). For the individual petitioners, the loss of 

constitutional freedoms “for even minimal periods of 

time . . . unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 

U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even 

minimal periods of time, unquestionably constitutes irreparable injury.”).

Likewise, the companies seeking a stay in this case 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. The Mandate 

places an immediate and irreversible imprint on all covered employers in 

America, and “complying with a regulation later held invalid almost always 

produces the irreparable harm of nonrecoverable compliance costs.” See 

Texas v. EPA, 829 F.3d 405, 433 (5th Cir. 2016) (quoting Thunder Basin Coal 

Co. v. Reich, 510 U.S. 200, 220–21 (1994) (Scalia, J., concurring in part and 

in the judgment)).

The States, too, have an interest in seeing their constitutionally 

reserved police power over public health policy defended from federal 

overreach.

C.

In contrast, a stay will do OSHA no harm whatsoever. Any interest 

OSHA may claim in enforcing an unlawful (and likely unconstitutional) ETS 

is illegitimate. Moreover, any abstract “harm” a stay might cause the Agency 

21 Not to mention the free religious exercise of certain employees. See U.S. 

Const. amend. I; cf. Holt v. Hobbs, 574 U.S. 352, 361 (2015).

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pales in comparison and importance to the harms the absence of a stay

threatens to cause countless individuals and companies.

D.

For similar reasons, 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. Of course, 

the principles at stake when it comes to the Mandate are not reducible to 

dollars and cents. The public interest is also served by maintaining our 

constitutional structure and maintaining the liberty of individuals to make 

intensely personal decisions according to their own convictions—even, or 

perhaps particularly, when those decisions frustrate government officials. 

* * *

The Constitution vests a limited legislative power in Congress. For 

more than a century, Congress has routinely used this power to delegate 

policymaking specifics and technical details to executive agencies charged 

with effectuating policy principles Congress lays down. In the mine run of 

cases—a transportation department regulating trucking on an interstate 

highway, or an aviation agency regulating an airplane lavatory—this is

generally well and good. But health agencies do not make housing policy, and 

occupational safety administrations do not make health policy. Cf. Ala. Ass’n 

of Realtors, 141 S. Ct. at 2488–90. In seeking to do so here, OSHA runs afoul 

of the statute from which it draws its power and, likely, violates the 

constitutional structure that safeguards our collective liberty.

For these reasons, the petitioners’ motion for a stay pending review is 

GRANTED. Enforcement of the Occupational Safety and Health 

Administration’s “COVID-19 Vaccination and Testing; Emergency 

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Temporary Standard”22 remains STAYED pending adequate judicial review

of the petitioners’ underlying motions for a permanent injunction.23

In addition, IT IS FURTHER ORDERED that OSHA take no 

steps to implement or enforce the Mandate until further court order.

22 86 Fed. Reg. 61,402 (Nov. 5, 2021) (to be codified at 29 C.F.R. pts. 1910, 1915, 

1917, 1918, 1926, and 1928).

23 The Clerk of Court shall ensure that this order applies with equal force to all 

related motions consolidated into this case in accordance with the court’s November 6, 

2021 order.

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Stuart Kyle Duncan, Circuit Judge, concurring:

In addition to the many reasons ably identified by Judge Engelhardt’s 

opinion, I underscore one reason why these challenges to OSHA’s 

unprecedented mandate are virtually certain to succeed.

Courts “expect Congress to speak clearly when authorizing an agency 

to exercise powers of ‘vast economic and political significance.’” Ala. Ass’n 

of Realtors v. Dep’t of Health & Human Servs., 141 S. Ct. 2485, 2489 (2021) 

(quoting Utility Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)). OSHA’s 

rule reaches “two-thirds of all private-sector workers in the nation.”86 Fed. 

Reg. 61,402, 61,403 (Nov. 5, 2021). It compels covered employers to (1) make 

employees get vaccinated or get weekly tests at their expense and wear 

masks; (2) “remove” non-complying employees; (3) pay per-violation fines; 

and (4) keep records of employee vaccination or testing status. 86 Fed. Reg. 

at 61,402–03, 61,551–54; 29 U.S.C. § 666. OHSA invokes no statute 

expressly authorizing the rule. Instead, OSHA issued it under an emergency 

provision addressing workplace “substances,” “agents,” or “hazards” that 

it has used only ten times in the last 50 years and never to mandate vaccines.

86 Fed. Reg. at 61,403; see 29 U.S.C. § 655(c)(1).

Whether Congress could enact such a sweeping mandate under its 

interstate commerce power would pose a hard question. See NFIB v. Sebelius,

567 U.S. 519, 549–61 (2012). Whether OSHA can do so does not.

I concur in granting a stay. 

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