The Biden administration’s ability to enforce its emergency Covid-19 shot-or-test workplace mandate hinges on convincing courts that despite rising immunization rates the virus still poses a “grave danger” to employees.
“I think they have an uphill battle to defend the grave danger,” said Todd Logsdon, co-chair of Fisher Phillips LLP’s workplace safety group.
An ordinary OSHA rulemaking requires the agency to prove a hazard poses a “significant risk” to workers; an emergency rulemaking must pass the higher “grave danger” standard.
That standard is defined by the law that created the Occupational Safety and Health Administration, which in two months crafted the Covid-19 workplace mandate rule that in normal times could have taken years. It requires employers with 100 or more workers to mandate by Jan. 4 that their employees are fully vaccinated or pass a weekly infection test.
Almost 225 million Americans have received at least one dose of a vaccine—86.7% of the adult population, according to Bloomberg data. Reported new U.S. cases of the disease were down to 125,350 on Monday from a recent high of 277,500 reported on Sept. 7. And the vaccine is newly available to Americans as young as 5.
“We’ve seen evidence nationwide that vaccine requirements work and that common-sense measures—including vaccines, masks, and testing—have successfully decreased COVID-19 cases in recent weeks,” Sen. Patty Murray (D-Wash.) said in a statement last week—even while lauding the OSHA rule and saying the virus still remains a “grave danger to workers.”
Tell the Judge
Employers and workers already are challenging the standard on grave danger grounds.
“The fact that OSHA concluded that all workplaces did not face a grave danger just a few months ago [when it focused on health-care workers] should lead this Court to doubt whether the evidence OSHA has recently proffered shows a grave danger,” attorneys for BST Holdings LLC and others wrote in a Nov. 5 brief with the U.S. Court of Appeals for the Fifth Circuit, which the next day issued a temporary injunction against enforcing the standard.
The lawsuit also said the Biden administration undercut its grave danger claim by delaying from Dec. 8 to Jan. 4 the deadline for federal contractors to get their workforce vaccinated.
“Truly ‘grave dangers’ do not wait to spread until after the holidays,” said the brief written by the Liberty Justice Center in Chicago and the Pelican Institute for Public Policy in New Orleans.
20 Months Into Pandemic
OSHA estimates that there are still more than 26 million unvaccinated workers, the rule says. An unvaccinated working-age person has a 1-in-202 chance of dying if they contract Covid–19, OSHA said, citing the Centers for Disease Control and Prevention.
“The determination of what exact level of risk constitutes a ‘grave danger’ is a ‘policy consideration that belongs, in the first instance, to the Agency,’” OSHA said in introducing the standard Nov. 4.
But OSHA declared the widespread grave danger 20 months into the Covid-19 pandemic—and only now wants to impose the requirements across businesses with different levels of infection risk, Logsdon noted.
In May, OSHA announced it would focus Covid-19 inspections on industries where it concluded workers were at the greatest risk of infection, including health care, meat processing, warehousing, retail, and prisons.
And the next month, when the agency issued its first Covid-19 emergency temporary standard, the rule was limited to only health-care employers whose workers could be exposed to Covid-19 patients or people suspected of being infected.
“If OSHA had followed what they had in the national emphasis program that came out in May and focused on those industries, I think they’d be in a much better, more defensible position on this,” Logsdon said.
VIDEO: President Biden’s vaccine mandate rule for companies, the likely legal challenges and what to expect next.
Shelly Anand, a worker-side attorney at Sur Legal Collaborative in Decatur, Ga., said OSHA’s conclusion that the standard will save the lives of 6,500 workers over six months shows a grave danger does still exist.
“There’s substantial grounds and evidence to justify the standard,” she said. “It’s been so prevalent, there’s data and statistics to back up the number of worker deaths that have happened.”
The threat of infection, permanent injury, or death is important to court reviews of emergency standards, said Michael Duff, a visiting professor at the Saint Louis University School of Law.
“For a court to rule against the emergency temporary standard it seems to me it would have to conclude that Covid-19 is not life-threatening,” Duff said.
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