A Drop in the OSHA for Workers

November 4, 2021

The Washington Update has reported on Biden's plan to force COVID vaccines on employees of private companies since July. After months of uncertainty, the Occupational Safety and Health Administration (OSHA) has finally published the Emergency Temporary Standard (ETS), which "requires covered employers to develop, implement, and enforce a mandatory COVID vaccination policy with an exception for employers that instead establish, implement, and enforce a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID testing and wear a face covering at the workplace." It "generally applies to employers in all workplaces that are under OSHA's authority and jurisdiction," except for those covered by the federal contractor vaccine mandate. Employees who work from home or work exclusively outdoors are also exempt.

According to their summary, the ETS "is effective immediately upon publication" -- 30 to 60 days from now. That's right -- this emergency rule, drafted and reviewed over the leisurely course of several months, delays enforcement for another one to two months after publication. "Unvaccinated workers face grave danger," they allege, but we're not going to do anything about it until after the holidays.

Will the rule stand? Not if Senate Republicans get their way. At least 40 Republican senators are backing a push to vote on a resolution disapproving of the rule under the Congressional Review Act. While that may not be enough, said Senator Rand Paul (R-Ky.), one of the backers, "it's still worth having the battle." He said the election results from Virginia, New Jersey, and elsewhere showed "there's a wave of dissatisfaction over this enormous government that's getting involved in our medical lives, our business lives, our personal lives."

The ETS may not survive in court. More than a dozen state attorneys general have been chomping at the bit, just waiting to stampede the rule as soon as it goes live. OSHA's rule invites them to challenge by admitting they are treading on turf where states have jurisdiction. "OSHA intends to preempt any State or local requirements that ban or limit an employer from requiring vaccination, face covering, or testing." By so doing, OSHA has taken a risky strategic gamble, as historically ETSs have a poor track record in courts.

States can challenge the ETS on multiple grounds. There is the question of infringing on state jurisdiction. There is the question of whether this is a real emergency (a case that OSHA's foot-dragging practically writes itself). There is the question of the legality of the crippling fines proposed. There is the deafening silence on exemptions, whether for medical reasons, on conscience grounds, or because of natural immunity. There is the question of compelled speech, as companies are required to promulgate the government's message to their employees. There is the question of whether this is a workplace issue, or whether OSHA shoehorned in some rules for a hazard not primarily found in the workplace.

There is the question of HIPPA violations, as companies are required to obtain and keep files of the private medical records of their employees. According to the summary, "The ETS requires employers to determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee's vaccination status, and maintain a roster of each employee's vaccination status."

Americans want the COVID crusade to end. The U.S. recently reached 70 percent of adults who are fully vaccinated and 80 percent who have at least one shot. Where is the threshold to end the mandates and restore normality?