President Biden surprised private-sector employers when he directed the Occupational Safety and Health Administration to issue a new emergency temporary standard (ETS), that would require employers with 100 or more employees to mandate that all their employees either become fully vaccinated or undergo weekly Covid-19 testing.
To date, the proposal has been very popular among large employers who were planning to mandate their employees become vaccinated but had not yet done so. The proposal made no mention, however, as to who will be responsible for paying for the required weekly testing. This has generated a great deal of concern among medium-sized and smaller employers and labor unions.
There is little doubt that OSHA will be able to show vaccination mandates protect the public at large, but there is great doubt that OSHA will be able to present compelling evidence to a federal court that this temporary rule is necessary to protect employees in the workplace, especially if OSHA is also actively engaged in expedited notice and comment rulemaking to issue a final rule.
If a reviewing court does not immediately issue a stay preventing the enforcement of the ETS, however, it may not matter to OSHA whether the ETS is upheld or not, as its goal of mandating vaccination or weekly testing may be so widely achieved by that point that it will not need to issue a final rule requiring the mandates.
‘Grave Danger’ Justification for ETS Is Problematic
OSHA said it hopes to publish this new ETS in “weeks” not months, also stating it will issue a final rule after public notice and comment before the ETS expires in six months. The current ETS that covers health-care workers deals with the “hazard” of exposure to the Covid-19 virus, but does not require employers to impose vaccination mandates on their employees. OSHA justified the emergency nature of the current rule on its determination that workers in health-care related industries face an “elevated risk” of exposure to the Covid-19 virus as compared to workers in other industries.
OSHA can promulgate emergency temporary standards under section 6(c) of the OSHA Act only if the Secretary of Labor determines that employees are subject to “grave danger” from exposure to substances or agents known to be toxic or physically harmful and that the emergency standard is “necessary” to protect employees from that danger.
In June, when it issued its current Covid-19 ETS, OSHA apparently concluded that workers in a specific industry, health care, were in “grave danger” from exposure to the Covid-19 virus. Now, OSHA states it is prepared to show that all employees in every industry are in “grave danger” from that exposure, but, for some unknown reason to date, only if you work for an employer with more than 100 employees.
OSHA will have to answer two important questions when it finally states the reasons justifying its proposed rule: (1) What has changed since the pandemic emerged in the U.S. in early 2020 to conclude that now, for the first time, this new vaccination mandate ETS is necessary to protect all workers from this virus when it was not necessary three to four months ago, and (2) why are the millions of workers currently working for employers with less than 100 employees not also presented with this “grave danger” and in need of this protection provided by the ETS?
ETS Challenged in Court Six Times, Upheld Once
There have been only nine emergency temporary standards issued by OSHA since 1970 and six of those have been challenged in court. OSHA’s track record defending the use of this power has not been stellar. Acrylonitrile (vinyl cyanide) was upheld by the court with the rest being stayed or vacated. Vistron v. OSHA, (6th Cir. March 28, 1978).
While the president is clearly entitled, as a matter of public policy, to make every effort to encourage an across-the-board vaccination program for all citizens, a federal court of appeals might very well conclude that he is not permitted to exceed the statutory rulemaking authority in the OSHA Act by either unnecessarily bypassing the rulemaking process for new standards or by issuing a standard that is a public health directive camouflaged as workplace safety and health rule.
The success or failure of any legal challenge, in the form of a petition for review may depend on which federal court of appeals hears the case. Certain circuit courts, such as the U.S. Court of Appeals for the Fifth Circuit, have historically been more willing than others to stay or overturn proposed standards. Which court will hear the petition will likely be resolved using “random selection” by the Judicial Panel on Multidistrict Litigation, 28 U.S.C.A. Section 2112(a).
Moreover, even if a petitioner is ultimately successful in having this ETS vacated, the judicial ruling may prove a pyrrhic victory. In the absence of the issuance of an immediate stay by the reviewing court, most employers who can probably will comply with the ETS while it sits in the court under review.
Accordingly, OSHA will be able to achieve its desired goal of requiring most employers to impose vaccination or weekly testing mandates on millions of workers.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
James Sullivan is the co-chair of Cozen O’Connor’s OSHA-Workplace Safety Practice. Prior to re-joining the firm earlier this year, he served as the chairman of the Occupational Safety and Health Review Commission. He was first appointed by President Trump to fill the remaining portion of a vacancy on the commission in May 2017 and was later appointed by the president as chairman of the agency and confirmed by the U.S. Senate in July 2019.