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OSHA Employer Vaccination Mandate is Narrower than Earlier White House Announcement – But Still has Legal Vulnerabilities

Today’s Occupational Health and Safety Administration (OSHA), issued its Emergency Temporary Standard. This standard requires COVID-19 test or vaccination, as well as masking at private workplaces owned by 100-plus employees. Jonathan Adler, who posted the rule’s details on his blog, explains that it contains some limitations which fix potential legal flaws in the wider policy of the White House initial statement. Employees who work from home or remotely are exempted now. There are also exemptions for employees with relevant disabilities and those with religious objections  that entitle them to “reasonable” accommodations under federal law.

However, it is still a questionable legal mandate. Jonathan Adler discusses some reasons for this. ReasonJacob Sullum interviews others.

Many of my points in my original post about the White House’s initial announcement still hold true for the OSHA rule that was issued today. Especially the following:

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OSHA can impose regulations through ETS without having to go through the usual “notice-and-comment” process. For that reason…. ETS policies have been repeatedly thrown out by courts. ETS was used only nine times previously. In five cases (of six which were litigated), the courts struck down the policy. ETS has never been used before in a manner as broad as this.

The vulnerability of the current ETS is easy to spot. A virus like the one that caused the pandemic is not a substance or agent. These terms are generally used to describe chemicals, liquids and man-made dangers. They do not refer to living organisms.

Maybe it is a new hazard. It’s unclear whether the “hazard” term includes all types of dangers, or whether it is restricted by previously mentioned terms (substances and agents).  A “new danger” could simply be a new dangerous substance, or agent, rather than one which, according to the statute, is “determined toxic or physically hazardous”. In addition, 19 months into the pandemic, it’s not easy to claim that Covid is a “new” hazard, at all….

Is Covid really a danger to workers when most can get vaccinated at their own discretion, almost eliminating any risk of serious illness or death. OSHA has near limitless authority to regulate workplace practices if “grave danger” is present, even in situations where this could be avoided.

Virtually any workplace activity poses grave dangers to at least some people, if none of the latter can be expected to take even minimal precautions on their own….

[I]If the government wins on this matter, it will set dangerous precedents and weaken the constitution’s separation of powers. Courts would need to decide that OSHA’s emergency regulations are authorized by statute to OSHA for hazards that 1) do not limit to chemical agents or substances, 2) aren’t really new and 3) are easy to mitigate for the individuals the agency is trying to protect.

Combining these findings would permit OSHA restrict or ban virtually any workplace practice. This could be done without the need to follow the comment and notice process or any other formal constraints normally applicable to major regulations.

Like I said in an earlier post, my frustrations with anti-vaxxers are shared by the government. I sympathize more strongly with vaccination mandates than any pandemic-era regulation, including lockdowns and migration restrictions. These policies are far less effective at promoting public safety than vaccine mandates. They also have far fewer restrictions on liberty.

However, even the most beneficial policies should be managed within executive limits and not set dangerous precedents. Even though you may trust the Biden government with its enormous power, it is important to consider whether or not you can have the same confidence in the next President, which could be a Republican, perhaps even the second Donald Trump.

This is a question that I don’t really know how the courts will decide. They may be more willing to listen to OSHA, as they are not allowed to alter a policy designed to deal with major emergencies. It is possible, however, that OSHA’s broad employer mandate combined with the ETS authority used to bypass normal notice-comment requirements could draw harsh judicial scrutiny. This has happened before, but it was less severe. OSHA could also come up with creative ways of making the rule more legal-vulnerable.

OSHA may decide to withdraw or limit the scope of the mandate as the Delta wave recedes, and Covid cases diminish (assuming that they continue doing so). Federal courts will not have an opportunity to consider all legal aspects. Although lawsuits against the ETS policy will likely be filed quickly, they could take several weeks to resolve fully.

Other possible solutions to this problem may exist, but they don’t seem to be to my attention. We will have to wait and see.

My earlier post noted that I believe the Biden administration will be more firm in its attempts to immunize federal workers, contractors and employees at hospitals and other facilities which receive federal funds. These other cases are covered by different agencies. OSHA ETS today doesn’t currently cover them.