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ANALYSIS: What Past Battles Mean for OSHA’s Covid Vaccine Plan

Sept. 13, 2021, 5:30 PM

All U.S. companies with 100 or more employees could be required to mandate either Covid-19 vaccinations or weekly testing for their workers, under an emergency rule announced by the Biden administration last week. The rule is expected in the coming weeks but, if history is any guide, it faces a narrow path to enactment.

The rule, which comes as a part of a larger White House effort to increase vaccination rates, is being put forward as an “emergency temporary standard” by DOL’s Occupational Safety and Health Administration. Unlike traditional regulations, emergency standards bypass the long rulemaking process that requires public comment and allow the agency to implement urgent six-month safety standards.

Such emergency rules are rare—and they are intended to be rare. OSHA is authorized to issue them only if doing so is “necessary to protect workers from grave danger.” The agency has issued 10 emergency temporary standards in its 30-year history. The most recent was a health care Covid-19 safety rule issued earlier this year. Before that, the last ETS was issued all the way back in 1983.

Rarer still is an emergency temporary standard that survives a legal challenge. Courts have been reluctant to allow OSHA to bypass the rulemaking process, some likening the process to agency-created legislation. Six of the 10 emergency standards issued by OSHA were challenged. Of those six, only one survived its challenge and went into effect.

Formula for Victory?

Enacting an emergency temporary standard isn’t impossible; OSHA proved that with its recent Covid-19 ETS for health care workers. But that ETS was far from a total victory: It was originally planned to apply to all industries, but after a series of delays, congressional hearings, closed-door White House meetings, and pressure from business groups, the final version was limited to health care workers.

Limiting the rule made it far less likely to be challenged in court—not only because limiting the rule appeased its most vocal critics by excluding them entirely, but because most health care companies were already taking the precautions mandated by the rule, so they didn’t have a reason to challenge it.

If or how the agency could repeat that same formula to enact a rule that evades a court challenge now remains unclear.

Vaccines—and especially employer-mandated vaccines—remain controversial. So much so that some states have moved to block employer vaccine mandates. If OSHA wants some form of an employer mandate to exist, the final rule will probably have to be limited in some way. That could mean a final rule with narrow coverage, like the health care rule, or it could mean a rule that offers employers an easier, less burdensome means of compliance than the currently proposed choice between vaccine mandates and testing.

Past Battles

If the rule is challenged, OSHA’s past attempts to defend emergency temporary standards underscore just how high the bar is for such rules to survive.

1973: Organophosphorous Pesticides

OSHA, under pressure from worker groups, issued an emergency rule regulating worker exposure to organophosophorous pesticides in an attempt to limit their use as a substitute for the then-recently banned pesticide DDT. The ETS relied heavily on a Senate report addressing misuse of pesticides generally, but the U.S. Court of Appeals for the Fifth Circuit blocked the rule, finding that OSHA failed to provide enough scientific evidence that the specific pesticides in question presented a grave danger to workers.

1973: 14 Carcinogens

OSHA’s emergency rule regulating worker exposure to potentially carcinogenic chemicals used in manufacturing dyes and pigments was challenged by both manufacturers seeking to eliminate the regulations and workers demanding stronger protections. The challenge from manufacturers focused on two chemicals that had been proven carcinogenic in lab tests involving rodents, but not in humans. Citing the lack of evidence that those chemicals presented a grave harm to workers, the Third Circuit blocked the portions of the emergency rule relating to the two chemicals in question.

1976: Diving Operations

OSHA’s emergency rule regulating diving safety standards was challenged by commercial diving companies that argued that it was prohibitively expensive or impossible for them to comply with many of the provisions. The Fifth Circuit blocked the emergency rule, holding that, if the ETS were permitted to go into effect, commercial diving companies would likely be successful in challenging the substance of the regulation.

1977: Benzene

OSHA’s emergency rule requiring a reduction in worker exposure to benzene, a chemical commonly used in petroleum manufacturing, was issued after the chemical was linked to higher instances of cancer. Manufacturers won their argument, with the D.C. Circuit holding that OSHA failed to show the rule was reasonably necessary to protect workers from grave harm.

1978: Acrylonitrile

OSHA issued its emergency rule on Acrylonitrile, a chemical used in rubber manufacturing, after several studies linked exposure to the chemical with higher instances of cancer. Despite a challenge from a manufacturer, the Sixth Circuit allowed the rule to go into effect.

1983: Asbestos

OSHA’s second emergency rule regulating worker exposure to asbestos was issued well after the risks of lung cancer, mesothelioma, and gastrointestinal cancer associated with asbestos were widely known and accepted. This ETS was intended to further limit worker exposure while OSHA engaged in notice and comment rulemaking to establish a permanent standard. The Fifth Circuit acknowledged that asbestos may present a grave danger to workers, but blocked the rule, stating that OSHA failed to show that it was necessary to alleviate a grave risk of worker deaths during its six-month applicability.

Surviving a Challenge

If OSHA can’t repeat its previous success in avoiding a court challenge, the rule faces long odds of success. It has been nearly 40 years since a court has had to consider the validity of an ETS. Even if Covid-19 seems very different from the risks addressed in the past, the legal standard has not changed. It’s very likely that courts will view the coming ETS with the same skepticism with which they viewed benzene, asbestos, and other risks in the past.

It won’t be enough for OSHA to show that Covid-19 vaccines protect workers from grave harm. Instead, the agency will have to show that, even with the existing landscape of employer vaccine mandates, incentive programs, and remote work options, workers are still at risk of grave harm—and that the specific ETS issued is necessary to keep workers safe.

OSHA’s path forward isn’t clear, but maybe the biggest takeaway from the agency’s ETS earlier this year is that OSHA can get these rules implemented—even if they end up looking very different from what was originally intended.

Bloomberg Law subscribers can find related content on our In Focus: Coronavirus (Covid-19) page.

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