The growing number of vaccinated people could fuel legal challenges if the federal government issues an emergency temporary standard to prevent workplace Covid-19 infections.
As of April 1, 16.9% of the U.S. population was fully vaccinated and 30% of the population was at least partially vaccinated, according to Bloomberg’s vaccine tracker website. The U.S. is averaging about 2.9 million vaccine shots per day and at that rate the nation would reach a 75% vaccination level in July.
“OSHA is running headlong into that there is no emergency. This has legal ramifications,” said Brent Clark, the Chicago-based co-chair of Seyfarth Shaw LLP’s workplace safety and environmental practice.
Others counter that an emergency standard, or ETS, continues to be needed as public health officials warn of a fourth wave of Covid-19 cases.
“A premature declaration of victory will mean more people will die,” said attorney Michael Felsen, a legal fellow in Boston with the National Council for Occupational Safety and Health and retired regional solicitor for the Department of Labor.
OSHA has yet to say if it has determined an emergency standard is needed and hasn’t announced a timeframe for releasing the standard if one is justified. President Joe Biden in a Jan. 21 executive order said he expected a decision from the agency by March 15.
Marc Freedman, the U.S. Chamber of Commerce’s vice president of employment policy, said the organization wouldn’t discuss whether it would sue over a standard that it hadn’t seen.
Freedman said he hopes the measure will address vaccinations. The Chamber will raise that concern if it meets with the White House’s Office of Information and Regulatory Affairs during the office’s possible review of the emergency standard.
As more people are vaccinated, OSHA will have a legal problem proving that Covid-19 continues to be a hazard so severe that the agency can bypass its usual rulemaking procedures and required public comment periods, according to employer-side attorneys.
The Occupational Safety and Health Act allows the agency to issue an emergency temporary standard that didn’t have to go through comment periods and public reviews before being enacted. But such a measure can only stay in effect for six months, before it’s replaced by a permanent rule that went through a public review.
Ron Taylor, a Baltimore-based partner with Venable LLP and chair of its Maryland labor practice group, said an ordinary OSHA rulemaking requires that the agency prove a hazard poses a “significant risk.”
An emergency standard rulemaking has to pass a higher bar. The hazard must pose a “grave danger” and the standard be necessary to protect workers, according to the federal occupational safety act.
“I think the real problem is establishing there is grave danger or a necessity of a rule,” Taylor said. “If 80% of the people have been vaccinated, what is the point of the standard?”
Clark said that if Covid-19 deaths decline to the same level as deaths attributed to the flu—about 30,000 to 60,000 annually in recent years according to the Centers of Disease Control and Prevention—OSHA would have a difficult time defending the rule.
If the standard was struck down or not issued, the agency could continue to use its existing rules, such as respiratory protection, and the general duty clause of the occupational safety act to cite employers, Clark and Taylor said.
As of March 24, OSHA had issued citations to 383 employers for virus-related violations, according to the agency.
Felsen, the worker advocate, said it was premature to assume a standard isn’t necessary.
Neither the CDC or OSHA have relaxed their Covid-19 recommendations and guidance for workplaces, he said. The U.S. Department of Health and Human Services continues to be concerned about new, more infectious variants of Covid-19.
Felsen also pointed to vaccination rates for Blacks and Hispanics that lag behind other ethnic groups. Those workers often hold jobs where they’re exposed to the general public or in close quarters with other workers.
According to a Bloomberg analysis of vaccination data, states on average have vaccinated more than a quarter of their White populations but only around one in seven Black people and one in eight Hispanic people.
“There is absolutely still a need for an ETS,” Felsen said. “We’re not out the woods yet.”
OSHA has had mixed success with its emergency temporary standards surviving challenges in federal appeals courts, according to a January Congressional Research Service report. The last time the agency released an emergency standard was 1983 and that regulation for asbestos exposure was rejected by judges.
Six of the nine emergency standards issued during the preceding decade were challenged in court, the CRS report said. Of those challenged, four were vacated or stayed and one was partially vacated. Only one standard survived unchanged.