Businesses and their employees are about to get a crash course in federal regulatory law thanks to President Biden’s nationwide announcement ordering the Occupational Health and Safety Administration (OSHA) to require employers of more than 100 workers to mandate COVID-19 vaccinations as a condition of employment.
Opponents of this sweeping command pledge to have it overturned by the U.S. Supreme Court—and they may actually have a good chance of accomplishing that. But in the immediate term, the overwhelming difficulties surrounding organizing and imposing such a massive program on so many employers could prove to be quite daunting for the administration.
For employers, the new vaccine mandate is going to require a crash course in the arcana of federal rulemaking laws and procedures, as well as on the role of the states in workplace safety and health regulation. Announced on Sept. 9, the President’s intention is to have OSHA issue an Emergency Temporary Standard (ETS) laying out what will be expected of employers.
Readers of EHS Today should be acquainted with this issue because on the day after he was inaugurated, President Biden ordered OSHA to issue a guidance document for employers, to be followed by an ETS telling them how to manage COVID in their workplaces (which did not call for mandatory vaccinations).
By the time OSHA was able to produce the ETS in mid-March, the prevalent opinion was that the emergency situation had passed because of the widespread and rapid pace of vaccinations throughout the population. Soon after, the President and other leaders proclaimed that the progress had been so good that many of the restrictions adopted in 2020 could be abandoned, including the wearing of masks by those who had been vaccinated.
As a result, the workplace ETS eventually issued by OSHA was confined primarily to workers in the healthcare industry. But that didn’t mean the agency backed away from COVID enforcement. Earlier this year it announced a National Emphasis Program (NEP) for COVID-19 enforcement targeting employers in what it considers to be higher hazard industries.
It has pursued that program since, starting with the healthcare industry and later moving to restaurants. Other targets are general warehousing and storage, temporary help and staffing agencies, discount department stores, supermarkets and grocery stores (excluding convenience stores), and poultry and meat slaughtering and processing plants.
Normally, a federal agency can only enforce regulations it has adopted under the Administrative Procedures Act (APA), where Congress requires agencies to only adopt a rule after it has been announced in the Federal Register and subjected to a public notice and comment period. Over the years, Congress has added other requirements, including environmental and small business impact statements, that must accompany each new rule.
Not an Easy Path
As a result, it can take anywhere from six months to several years before a new regulation can go into effect, and even then it can be subject to court challenge by those who are impacted by it. An ETS is not subject to the strictures of the APA, but that doesn’t mean OSHA can adopt one without keeping in mind that it may be called upon to prove an emergency continues to exist before the federal courts.
OSHA has not successfully issued an ETS since 1978. Its last attempt before COVID would have regulated asbestos exposure and was invalidated by a U.S. Court of Appeals in 1984. The court held that OSHA had not sufficiently supported its conclusion of a “grave danger,” i.e., that 80 people would die in the next six months without the ETS, and that OSHA could not show that an asbestos ETS was “necessary” given its existing respiratory standard, attorney Gabrielle Sigel of the Jenner & Block law firm, pointed out last March.
She also pointed out that the March 15 deadline set by the President in January had not given OSHA enough time to assemble the data needed to establish that a grave danger existed. Another problem is that another federal appeals court a year earlier rejected a lawsuit filed by the AFL-CIO seeking to force the Trump era OSHA to adopt an ETS, another indication that federal courts will not be pushovers for the Biden administration.
Then there is the fact that federal OSHA only controls enforcement in about 28 states; the remainder regulate workplace safety through state agencies and laws. Last year, states like California and Virginia were able to adopt sweeping ETS rules that survived court challenges and were later made permanent by the state legislatures.
The sheer scope of this new order also creates an enormous number of management and cost complications. Even employer groups that have embraced the concept of the President’s order are questioning how these details will eventually be worked out. For example, will OSHA continue its requirement that makes employers responsible for recording adverse reactions to the vaccines as work related when the shots are not voluntary?
Then there is the political fallout which began immediately following the President’s speech. In his speech, President Biden confessed to losing patience with those of his fellow Americans who have chosen not to get vaccinated for a variety of reasons. Given the divided state of this country right now, still reeling from the chaotic withdrawal from Afghanistan, it could be tough for the President to sell the vaccination mandate to the public.
