The Biden Administration’s ‘Emergency’ Vaccine Mandate May Be Vulnerable to Legal Challenges
The Biden administration plans to impose a vaccination mandate on private-sector employees through an emergency temporary standard (ETS), a rarely used option that allows the Occupational Safety and Health Administration (OSHA) to avoid the usual rule-making process. The history of such standards suggests that the new rule, which demands that every U.S. business with 100 or more employees require them to be vaccinated or submit to weekly virus testing, may be vulnerable to legal challenges.
In the half-century after Congress approved the Occupational Safety and Health Act in 1970, the Congressional Research Service (CRS) noted in a report updated on July 13, OSHA issued an ETS just 10 times. Before June 21, when OSHA used an emergency standard to require specific COVID-19 precautions for health care workers, it had not issued an ETS in 38 years, and it had never cited the danger posed by a communicable disease as the justification for an ETS.
Of the nine emergency standards issued between 1971 and 1983, three (dealing with asbestos, vinyl chloride, and the soil fumigant DBCP) were not challenged. Of the six that were challenged in court, four (dealing with asbestos, benzene, organophosphorus pesticides, and diving operations) were stayed or vacated, one (dealing with various carcinogens) was partly vacated, and one (dealing with vinyl cyanide) was upheld. In other words, legal challenges were partly or fully successful 83 percent of the time.
From OSHA’s perspective, an ETS offers clear advantages over the time-consuming procedures it typically must follow to impose new regulations, which include advance notice and an opportunity for public comment. In 2012, the Government Accountability Office examined 59 “significant” standards that OSHA issued between 1981 and 2010. It found that the average time between initial consideration of a standard and its promulgation was nearly eight years. Even after OSHA published a notice of proposed rule making in the Federal Register, an average of more than three years elapsed before the standard was finalized.
According to a flowchart that OSHA published in 2012, the CRS report notes, “the estimated time from the start of preliminary rulemaking to the promulgation of a standard ranges from 52 months (4 years, 4 months) to 138 months (11 years, 6 months).” After a notice of proposed rule making is published, “the estimated length of time until the standard is promulgated ranges from 26 months (2 years, 2 months) to 63 months (5 years, 3 months).”
By contrast, OSHA can issue an ETS “without supplying any notice or opportunity for public comment or public hearings.” The standard takes effect immediately and lasts until it is superseded by a permanent rule, which OSHA is notionally required to issue within six months. That requirement seems unrealistic, the CRS notes, given “historical and currently expected time frames for developing and promulgating a standard.”
While the ETS option is undeniably convenient for OSHA, it requires a special justification. OSHA must “determine” that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.” It also must determine that its ETS is “necessary to protect employees from such danger.” Both of those judgments are subject to judicial review.
“The term grave danger, used in the first mandatory determination for an ETS, is not defined in statute or regul
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