Biden Vax Mandate Vulnerable

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

Federal courts will have to decide whether the rule is "necessary" to protect workers from a "grave danger."

by Jacob Sallum, Reason

The Occupational Safety and Health Administration (OSHA) unveiled its long-awaited vaccine mandate for private employees today. This "emergency temporary standard" (ETS), which the Biden administration first announced two months ago, demands that businesses with 100 or more employees either require them to be vaccinated against COVID-19 or adopt a policy requiring unvaccinated employees to wear face masks and submit to weekly virus testing. Employers must comply with most of the order within 30 days, although they have an additional month to implement the testing requirements.

Some large companies already require vaccination or will welcome the OSHA standard as a justification for doing so. But the rule is bound to provoke lawsuits by some businesses and trade groups, and OSHA's poor track record in defending prior emergency standards suggests this one may be legally vulnerable.

The agency says the ETS, which covers "two-thirds of the nation's private-sector workforce," will "protect more than 84 million workers from the spread of the coronavirus on the job." The disease poses a "grave danger" to employees, it says, and "immediate action is necessary to protect them."

That language tracks the statutory requirements for an ETS, which bypasses the usual rule making process, allowing OSHA to impose regulations that take effect immediately. OSHA's determination that COVID-19 in the workplace qualifies as a "grave danger" is subject to judicial review, and so is its assertion that the specific policy it chose is "necessary" to address that danger.

The ETS includes some exceptions designed to satisfy the latter requirement. The rule does not apply to "employees who do not report to a workplace where other individuals are present," employees who are "working from home," or "employees who work exclusively outdoors."

OSHA also is allowing some leeway in the use of face masks. They are not required "when an employee is alone in a room with floor to ceiling walls and a closed door," "while the employee is eating or drinking at the workplace or for identification purposes in compliance with safety and security requirements," or "where the employer can show that the use of face coverings is infeasible or creates a greater hazard."

Still, the burdens imposed by the ETS are substantial.

Employers have to "determine the vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees, maintain records of each employee's vaccination status, and maintain a roster of each employee's vaccination status." They must give employees up to four hours of paid time when they get their shots, plus "reasonable time and paid sick leave to recover from any side effects experienced following each primary vaccination dose."

Businesses are required to make sure that unvaccinated workers are tested "at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer)." They must "require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19." Employees who test positive must be removed from the workplace "immediately" and allowed to return only after they test negative, comply with isolation requirements, or present "a recommendation to return to work from a licensed healthcare provider."

OSHA says the ETS "does not require employers to pay for testing," although "employers may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements." If employees have to foot the bill for testing, which might amount to $150 or so a week, that cost will provide an added vaccination incentive, although that is not the official goal of requiring testing.

The hassle and discomfort of wearing a face mask all day, although officially a safeguard aimed at protecting co-workers, likewise will encourage employees to be vaccinated. Employers must "ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes."

Employers who adopt a "mandatory vaccination policy" can comply with the ETS even if some employees are not actually vaccinated. OSHA allows the following exceptions: "those for whom a vaccine is medically contraindicated, those for whom medical necessity requires a delay in vaccination, or those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement." It seems those unvaccinated employees don't have to wear masks or be tested each week, since those safeguards apply only to businesses that require employees to choose between vaccination and testing plus masking.

If so, a legal challenge could argue, OSHA is implicitly conceding that testing and masking of unvaccinated employees is not truly "necessary." In the example OSHA offers, 5 percent of a company's employees "are entitled to reasonable accommodation." In terms of COVID-19 risk, that situation is indistinguishable from a workplace where 5 percent of employees simply choose not to be vaccinated.

The vaccination exceptions allowed by OSHA do not include people who are resistant to COVID-19 because they were previously infected. While there is considerable debate about how the protection offered by naturally acquired immunity compares to the protection offered by vaccination, the lack of an exception for people who have recovered from COVID-19 could be another basis for questioning the necessity of OSHA's requirements.

The ETS also includes paperwork and reporting requirements. Employers must provide workers with information about "the requirements of the ETS and workplace policies and procedures established to implement the ETS; vaccine efficacy, safety, and the benefits of being vaccinated (by providing the CDC document 'Key Things to Know About COVID-19 Vaccines'); protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false statements or documentation." They must "report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization."

As OSHA sees it, the burdens imposed by its mandate are easily justified by its benefits. The agency estimates that the rule will "save over 6,500 worker lives and prevent over 250,000 hospitalizations [among employees] over the course of the next six months." It says "the mortality and morbidity risk to employees from COVID-19 is so dire that the grave danger from exposures to SARS-CoV-2 is clear."

Employers who challenge the ETS no doubt will contest the reliability of OSHA's estimates. The agency says it has "attempted to quantify the potential number of hospitalizations and fatalities that this ETS could avert by increasing workforce vaccination rates." But it concedes that "predicting the health impact of this ETS is particularly challenging, given the ever-changing nature of the pandemic and the many factors that may motivate workers to become fully vaccinated."

A more basic question is whether OSHA's estimates, assuming they are in the right ballpark, are enough to establish a "grave danger." The Occupational Safety and Health Act, which lays out the criteria for an ETS, does not define that term. "Although the federal courts have ruled on challenges to previous ETS promulgations," the Congressional Research Service notes in a recent report, "the courts have provided no clear guidance as to what constitutes a grave danger."

OSHA argues that COVID-19's contagiousness, its potentially lethal consequences, and the opportunities for transmission among employees make it a "grave danger" in the workplace. It takes the position that a "grave danger" exists whenever a hazard has the potential to kill a substantial number of employees nationwide. But in the case of COVID-19, the nature and degree of the danger depend on factors that vary widely between workplaces, including vaccination rates, the health and age of employees, and physical conditions such as ventilation and crowding.

The danger from COVID-19 is less serious, for example, in a well-ventilated workplace where close contact between employees is minimal. It is also less serious when most employees are already vaccinated, or when the work force is relatively young and healthy. A legal challenge could argue that OSHA should have taken such differences into account instead of assuming that a "grave danger" exists in all indoor workplaces.

OSHA rarely issues emergency standards, and it is not hard to see why. Six of the nine OSHA emergency standards issued from 1971 to 1983 were challenged in court, and those challenges were partly or fully successful in all but one case. 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. It was also the first time OSHA had cited the danger posed by a communicable disease as the justification for an ETS.

None of this necessarily means that lawsuits challenging OSHA's latest ETS will succeed. But it would be a mistake simply to assume, as The New York Times does, that "OSHA has the authority to introduce a vaccine mandate." Whether OSHA actually has that authority — and if so, how far it extends — is something the courts will have to determine.