BST Holdings, LLC v. OSHA

Private Sector Businesses Shouldn’t be Forced to Vaccinate and Test their Employees

The Story

Brandon Trosclair is a proud Louisianan business owner – a second-generation grocer that employs nearly 500 people with 15 grocery stores across Louisiana and Mississippi. His stores are cornerstones of our communities. They employ our neighbors and provide an important service to each one of us. But now, they’re being threatened by an illegal overreach by the Biden administration.

In September 2021, President Biden announced that the federal government would mandate COVID-19 vaccines for all Americans who work for private companies with 100 or more employees. Because the states, not the federal government, have authority over public health, the Biden Administration is having Occupational Safety and Health Act (OSHA) impose the mandate under the guise of workplace safety. It plans to avoid the normal notice-and-comment procedures by styling the mandate as a emergency temporary standard (ETS).

When the news of the Biden vaccine mandate came out, Brandon was immediately concerned for the rights of his employees. He said, “Over the past 20 months, my employees have showed up to work and served their communities in the face of COVID and hurricanes. Now I’m being told by the government to insert myself into their private health decisions? That’s wrong and I won’t stand for it. It is not the government’s place to tell me how to operate my stores or to force me to interfere in the private medical decisions of my employees.”

The OSHA vaccine mandate would place businesses across the country in a difficult position: enforce the mandate or fire your employees. Brandon simply saw this as wrong and felt it was his duty to challenge this unjust mandate to help people across the country keep their doors open and Americans employed in the wake of the COVID-19 pandemic.

The Pelican Institute, with the help of the Liberty Justice Center, is challenging the mandate on grounds that it exceeds OSHA’s statutory authority under the Occupational Safety and Health Act. First, OSHA’s authority is limited to workplace-related hazards, but the risk of COVID-19 infection is a society-wide danger. Second, OSHA cannot show that COVID-19 is a grave danger for all employers with 100 or more employees because only a few months before, it concluded that COVID-19 was only a grave danger to healthcare employers. Additionally, whether COVID is a grave danger in a workplace depends on individual employees’ age and health, not how many co-workers they have. Third, because the mandate applies regardless of individual employee’s risk and difference in workplace conditions, it is not narrowly tailored as emergency standards are required to be. Finally, OSHA’s statutory authority to protect employees from “new hazards” must be read to exclude COVID in light of the preceding language: “substances or agents determined to be toxic or physically harmful.” Otherwise, the agency could promulgate any regulation that would have the arguable effect of preventing the spread of a communicable disease.

The Latest

We won at the Supreme Court!

The Timeline

• Petition for Review and Emergency Motion to Stay. On November 5, 2021, a Petition for Review was filed with the Fifth Circuit Court of Appeals, including Petitioners’ Brief.
• Stay Granted. On November 6, 2021, the stay was granted.
• Respondents’ Opposition to Emergency Motion to Stay On November 8, 2021, Respondents filed their Opposition to Emergency Motion to Stay.
• BST Holdings, LLC Petitioners’ Reply in Support of Their Emergency Motion Stay Enforcement Pending Review and to Expedite Review. On November 9, 2021, BST Holdings filed their Reply.
• Fifth Circuit Order. On November 12, 2021, the Fifth Circuit published an ordering ordering the federal government to stand down on the OSHA mandate.
• Motion to Transfer. On November 23, 2021, a Motion to Transfer was filed.
• Opposition to Motion to Dissolve Stay. On December 7, 2021, an Opposition to Motion to Dissolve Stay was filed. OSHA Reply in Support of Emergency Motion to Dissolve Stay. On December 10, 2021, OSHA filed a Reply in Support of Emergency Motion to Dissolve Stay.
• Opinion on Initial En Banc. On December 15, 2021, the Sixth Circuit published an opinion on initial en banc.
• Order to Dissolve Stay. On December 17, 2021, the Sixth Circuit published an order to dissolve stay.
• Emergency Application to the U.S. Supreme Court. On December 18, 2021, an Emergency Application to the U.S. Supreme Court was filed, including Appendix for Emergency Application to the U.S. Supreme Court. On December 30, 2021, OSHA filed its Response in Opposition to Emergency Application. On January 3, 2022, BST Holdings filed its Reply on Emergency Application.
• Respondents’ Motion to Dismiss. On January 25, 2022, Respondents’ filed their Motion to Dismiss.
• Sixth Circuit Order. On February 18, 2022, the 6th Circuit published an Order from the United States Court of Appeals for the Sixth Circuit dismissing the case as moot in light of the Supreme Court’s activity.