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How OSHA Can Conjure Biden’s Soft Vaccine Mandate: Explained

Sept. 14, 2021, 6:13 PM

President Joe Biden’s plan to require large private employers to mandate worker vaccinations or weekly Covid-19 testing, enforced by the Occupational Safety and Health Administration, brings new attention to the federal worker safety agency and to the Occupational Safety and Health Act of 1970 that gives the agency its powers.

The administration’s initiative announced last week immediately drew the ire of Republican governors and attorneys general who roundly declared their intent to fight the upcoming rules in court.

Under the act, the U.S. labor secretary must consider “the urgency of the need for mandatory safety and health standards for particular industries, trades, crafts, occupations, businesses, workplaces or work environments.” It’s unclear, though, whether that gives Biden or the safety agency the power to compel businesses with more than 100 workers to vaccinate the willing, or to subject the unwilling to perpetual testing.

1. When can OSHA implement an emergency standard?

OSHA can impose an emergency temporary standard when workers are exposed to a “grave danger” and a rule is deemed urgently needed to protect them. A status above the “significant risk” bar OSHA must clear when promulgating more ordinary health and safety standards, that designation gives the agency authority to shortcut the routine rulemaking process—which usually can take months—to mere weeks.

For their yet-to-be-released vaccination plan to survive a legal challenge, OSHA and the administration must prove that Covid-19 represents “a grave danger” to all workers in employment settings of 100 or more people, says safety attorney Travis Vance.

Vance, a partner in the Charlotte office of Fisher & Phillips LLP, said he suspects the initiative won’t survive a legal challenge because it targets employers based on size, rather than what they do. Some industries have seen more infections and deaths “based on the number of Covid cases and number of complaints, so the exposure and hazard that would lead to grave danger is related to industry and not firm size,” he said.

2. What must OSHA establish for this ETS?

“OSHA has a mandate to protect workers from hazards in the workplace and to assure safe and healthful working conditions, Congress granted them that authority,” said Melanie Stratton Lopez, an attorney at Centro de los Derechos del Migrante, Inc., which represents migrant workers in safety claims against their employers.

“OSHA has the authority to issue an ETS if they can establish workers are subjected to a grave danger to hazards that are physically harmful and that it’s necessary to protect them from such danger,” Lopez said. “The highly transmissible aspect of Covid-19 is the grave danger, where hundreds of thousands of people already have died. What do also know is that the vaccines are highly effective in reducing that risk. Those two elements are highly effective in proving the necessity of this rule.”

Former OSHA head Ed Foulke, now a safety attorney also at Fisher & Phillips, cautioned that even if the rule is to be upheld based on the delta variant’s growth across the country, the relatively small agency within the Labor Department will have to enforce the massive mandate, starting with the collection of proof of vaccination.

“Under OSHA’s medical record standard, businesses will have to keep those records for 30 years and will want to see that you’ve got the records,” Foulke said. “Then the question of testing and who’s going to pay for all this? All of these are questions that need to be answered.”

3. How has the OSH Act been used during the pandemic?

OSHA can cite and fine businesses that don’t comply with its safety regulations, pursuant to its enabling act, which also provides whistleblower protection to workers who complain to the agency about workplace hazards. Companies can be fined for such violations, but also can appeal those citations to the Occupational Safety and Health Review Commission.

During the pandemic, OSHA largely relied on the general duty clause, which requires employers to provide a workplace free of known deadly hazards that can be feasibly mitigated, to cite employers. The agency in June issued an emergency temporary standard, but that was limited to requiring health-care employers to protect workers against on-the-job Covid-19 infection. Announced by Biden in January, it wasn’t issued until June. Legal challenges to it are still pending.

Several states that operate their own OSHA-approved safety plans—such as California, Virginia, Michigan, and Washington—also developed emergency temporary standards during the pandemic to mitigate the spread of Covid-19 in their states.

VIDEO: We answer the question on the minds of CEOs, in-house lawyers, and rank and file employees - can employers make their employees take the vaccine?

4. Does the president have the power to compel businesses to comply?

Article II of the U.S. Constitution states the president is responsible for the execution and enforcement of the laws created by Congress. A president, through that executive authority, can instruct a government agency to craft rulemaking affecting businesses. What remains to be seen, however, is whether the government agency’s rulemaking is too broad, preempts states with state plans, or can’t succeed for other reasons when challenged in court.

“We have no idea until OSHA promulgates it, or what the contours are going to be and what it’s going to say and what penalties are going to be imposed,” said Baruch Fellner, a partner in Gibson, Dunn & Crutcher’s Washington, D.C., office.

One known factor, that, is that the agency’s record in defense of its emergency standards in court is just one-for-six.

To learn more:

Biden Orders Shots for Millions, Calling Unvaccinated a Threat

Top DOL Lawyer Courts Business Support for Biden’s Vaccine Order

OSHA’s Planned Covid Vaccine Rule Has Firms Asking, What’s Next?

Biden’s Employer Shot Mandate Tasks OSHA With New Rulemaking (1)

To contact the reporter on this story: Fatima Hussein in Washington at fhussein@bloombergindustry.com

To contact the editor responsible for this story: Andrew Harris at aharris@bloomberglaw.com

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