Don’t Believe OSHA When It Threatens To Turn Its Rescinded Vaccine Mandate Into a Permanent Rule

OSHA (Occupational Safety and Health Administration) has officially withdrawn its mandate for private employers to vaccinate and test in emergencies. This was due to the fact that OSHA’s Jan 13 Supreme Court stop blocking rule enforcement meant it is unlikely to survive judicial review. OSHA also indicated it might still attempt to enforce a similar mandate via the regular rule-making processes.

It is highly unlikely that this will happen due to both the lengthy process required and the Court’s rationale in granting the stay. Any talk of making the ETS permanent should be seen as a face-saving bureaucratic gesture.

OSHA released a rule on November 5. It required that all employees in companies of 100 and more be vacinated for COVID-19. They also had to wear masks and undergo weekly virus testing. OSHA presented this edict in an “emergency temporary standard” (ETS) format. This avoids traditional rule-making processes, but OSHA is required to prove that the regulations it has issued are needed to safeguard employees against a “grave threat” in the workplace.

OSHA has withdrawn the Vaccination and Testing ETS emergency standard as an enforceable temporary standard, but the agency stated in its Federal RegisterNotice: “OSHA will not withhold the ETS in the sense that it serves to be a proposed rule according to section 6(c(3)) of Act. This action does not alter the ETS status as a proposition under section 6 (b) of Act nor affect the status of notice-and-comment rulemaking commenced under the Vaccination & Testing ETS.

OSHA refers to dual functions of ETS. Regulations take effect instantly and are valid for 6 months. However, they serve to propose a rule which is to be completed by the expiration of the six-month period. The statutory deadline seems extremely unrealistic given the length of time it takes OSHA to issue an average standard. This process requires both advance notice as well as opportunities for public comments and hearings.

In 2012, the Government Accountability Office examined 59 “significant” standards that OSHA issued between 1981 and 2010. The average time it took for a standard to be promulgated was almost eight years, according to the Government Accountability Office. OSHA had published an OSHA notice of proposed rules making. Federal RegisterIt took more than three years for the standard to be finalized.

OSHA’s 2012 flowchart shows that the Congressional Research Service (CRS), in a report dated 2021, noted that “the time between the commencement of preliminary rulemaking and the promulgation a standard is 52 months.” The estimated time it takes for the standard to be promulgated is 26 months (two years and two months), to 63 years (3 months), after a notice is published.

OSHA could still challenge the regulations resulting from its repealed ETS even if it spent several years creating one. A permanent standard, as suggested by the Supreme Court in its reasoning for blocking ETS’s repeal, would not fare any better.

A lot of litigation regarding the ETS focused upon the distinction between an “emergency standard”, which must address “grave danger”, and an “ordinary rule”, which needs to be “reasonably needed or appropriate” for addressing “significant risks.” This distinction was again raised when arguments were heard by the Supreme Court on January 7 for and against a stay. Six days later, the Supreme Court heard arguments for and against a stay. But the Court focused its attention on something else: The distinction between occupational risk or risk more generally.

OSHA is authorized to deal with the threat posed COVID-19 by the majority of respondents. This includes when the virus presents a particular danger due to the unique features of an employee’s job or workplace, such as laboratories handling the virus and in cramped or crowded environments. It said OSHA had to consider those “particular characteristics” and not just target virus transmission in all indoor workplaces with a rule covering 84 million people.

COVID-19, although it can occur in many workplaces is not considered a serious risk. OccupationalThe Court stated that there was a hazard for most. “OSHA’s indiscriminate approach fails to account for this crucial distinction—between Occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an ‘occupationalSafety or Health Standard.

OSHA is not able to enforce general public-health measures, so the majority of OSHA employees and employers concluded that OSHA had overstepped its legal jurisdiction. Similar reasoning would be applied to any permanent standard, which was similar to the ETS in terms of its scope and justification.

The New Civil Liberties Alliance warns that “The Biden administration is not giving in” and issues a press release. This was one of many organizations which opposed the mandate to vaccines. It says it instead that it will concentrate its resources on promulgating permanent rules and not the ETS. You will have success with it.