The Details of OSHA’s Vaccination Rule for Private Employees Suggest Several Ways It Could Be Vulnerable to Legal Challenges

Today, the Occupational Safety and Health Administration released its long-awaited vaccine directive. Biden’s administration announced this “emergency temporary Standard” (ETS) two months ago. It requires that all businesses employing 100 people or more either require COVID-19 vaccinations or create a policy that unvaccinated workers must use face masks to submit to weekly viral testing. Although employers must follow most of this order in 30 days, there is still a month for them to apply the requirements.

Large companies may already be required to vaccinate or they will accept the OSHA standards as an excuse. The rule will likely lead to lawsuits from some trade groups and businesses. OSHA’s weak track record of defending emergency standards in the past suggests this is a potentially vulnerable one.

According to the agency, the ETS covers more than two-thirds the country’s workforce in the private sector and will protect workers against the spreading of coronavirus while on the job. According to the agency, employees are at “grave risk” and “immediate actions must be taken to safeguard them.”

The language follows the ETS statutory requirements, bypassing the normal rulemaking process. This allows OSHA to immediately impose regulations. OSHA’s finding that COVID-19 is a grave danger in the workplace is up for judicial review. OSHA is also allowed to assert that it has chosen the right policy to mitigate that threat.

There are exceptions in the ETS to fulfill this last requirement. It does not apply “employees that do not report at work,” “employees working from home” or employees who only work outside.

OSHA is also allowing for some discretion in using face masks. The use of masks are not permitted “when the employee is at home alone or when the employer is able to show the employer that face covers pose a greater risk or cannot be used.”

But, these burdens are still significant.

The employer must “determine each employee’s vaccine status”, obtain valid proof from all vaccinated employees and keep records. Employees must be allowed to work for up to 4 hours after receiving their shot.

Employers are expected to ensure that employees are vaccinated at least twice a week, if they are in the workplace more than once per week. If the employee is absent for longer periods of time (more than a week), or 7 days prior to returning to work. Employers must be notified immediately if they are given a COVID-19 positive test.
COVID-19 is diagnosed in employees. The workplace must immediately remove employees who have been diagnosed with COVID-19. They can return once they are negative and comply with isolation rules or when they present a “recommendation to go back to work” from licensed healthcare providers.

OSHA claims that employers are not required to pay for ETS testing. However, “employers could be required pay for testing to meet other laws and regulations, collective bargaining arrangements, or other collectively-negotiated agreements.” While testing might cost $150 per week for employees, this will offer an additional incentive to get vaccinated.

While a safety measure to help co-workers, wearing a facemask all day is uncomfortable and can cause discomfort, it will be an incentive for employees to get vaccinated. Employers are required to ensure that all employees who have not been fully vaccinated, wear a mask when inside or in a car with someone for work.

Employers that have a mandated vaccination policy may be able to comply with ETS, even though some of their employees do not get vaccinated. OSHA has allowed the following exceptions to apply: those who have medically indicated that a vaccine should not be administered, people with serious medical conditions, and those who are legally entitled under federal civil rights laws to reasonable accommodations for a reason other than the need for vaccination. Those unvaccinated employees Do notEmployers who require their employees to pick between testing and vaccination plus masking will not be required to use masks.

OSHA could be sued for claiming that masking and testing unvaccinated workers isn’t really necessary. OSHA’s example shows that 5 percent of employees in a company “have the right to reasonable accommodation.” That situation can be distinguished from an environment where 5 percent choose not to get vaccinated.

OSHA’s exemptions from vaccination do not apply to people with COVID-19 resistance. OSHA may not be able to allow people with COVID-19 who are immune from naturally occurring immunity. OSHA could also refuse to permit them an exemption.

The ETS also includes paperwork and reporting requirements. The ETS also requires employers to provide information to workers about the ETS, workplace policies, procedures, vaccine efficacy and safety and benefits. This includes protections from retaliation, discrimination, as well as laws that can punish employees for knowingly supplying false documentation or statements. Workers must report work-related deaths due to COVID-19 within eight hours after learning of them. They also need to inform OSHA about work-related COVID-19 hospitalizations within 24 hour of being informed by the employer.

OSHA believes that the benefits of its mandate outweigh any burdens. According to OSHA, the rule is expected to save more than 6,500 workers lives and reduce over 250,000 hospitalizations. [among employees]The next six months will be a blurred period. According to the report, “The mortality and morbidity risks to workers from COVID-19 are so severe that there is a grave danger from SARS-CoV-2 exposures.”

OSHA will doubtless contest estimates from employers that challenge the ETS. It claims that it tried to calculate the number of deaths and hospitalizations that an ETS would prevent through increasing worker vaccination rates. However, it acknowledges that it’s difficult to forecast the ETS’s health effects due to the constantly changing nature and many motivators that might motivate people not to be fully vaccinated.

OSHA’s estimates can be used to assess whether there is “grave danger” assuming that they are within the correct range. This term is not defined in the Occupational Safety and Hyg Act. Although federal courts have ruled in cases challenging previous ETS promulgations, the Congressional Research Service recently noted that the courts did not give clear guidance on what constitutes a serious danger.

OSHA asserts that COVID-19’s infectiousness, potentially deadly consequences and potential transmission to employees makes it a “grave threat” at work. The OSHA position is that there’s a “grave threat” when a danger has the potential for a large number of people to die. COVID-19’s nature and extent of danger depend on many variables, including the vaccination rate, employee health and age and physical conditions like ventilation and crowding.

COVID-19 poses less risk in an environment where there is little or no contact between workers. The danger from COVID-19 is less severe when employees have received their vaccinations or are young and in good health. OSHA could be sued for arguing that it should have considered these differences instead of concluding that indoor work places pose a grave danger.

OSHA does not issue emergency standards very often, which is easy to understand. Six OSHA emergency standards from 1971-1983 were challenged in courts. Those challenges proved to be partially or completely successful in only one instance. On July 21, when OSHA published an ETS requiring specific COVID-19 precautions in health care settings, it was the first time the agency had attempted an emergency standard in 38 years. OSHA used this ETS to justify the risk posed in communicable disease.

This does not necessarily mean that OSHA will win lawsuits against its latest ETS. However, it is a mistake to presume otherwise. The New York TimesIt does. OSHA is authorized to issue a vaccine mandate. Whether OSHA actually has that authority—and if so, how far it extends—is something the courts will have to determine.