Five Tentative Thoughts About The OSHA Employer Vaccine Mandate
Yesterday, the Biden Administration announced that would require employers with more than 100 employees to mandate vaccination or testing. Specifically, the Department of Labor and the Occupational Safety and Health Administration will issue the rule. We do not yet have a proposed rule. Here, I will offer five tentative thoughts.
First, there will be litigation. Lots of litigation. This will be the rule that launched a thousand suits. Employers and employees across the country who object to the mandate will have standing to sue. They will bring suits in many district courts. Some judge, somewhere, will find this policy unlawful in some regard. And one of these judges may issue a nationwide injunction, or “vacate” the rule. And some court of appeals, somewhere, may agree. [Update: Under 29 U.S.C. 655(f), a pre-enforcement challenge may begin in the court of appeals]. The Biden Administration no doubt recognizes that the courts can block this policy. But this risk was worth taking. Most employers will not challenge the policy. And many companies will be happy this policy provides cover for mandating vaccines. In the interim, millions of people will get vaccinated. But this mandate could create unanticipated ripples in the workplace. Many people will simply choose to be fired, rather than get the jab. Others will submit fraudulent documents, which will lead to discipline. Unemployment numbers may actually trickle up because of this executive action. People do not respond well to mandates. Indeed, I fear this federal diktat will harden the hearts, so to speak, and exacerbate vaccine hesitancy.
Second, the rule will likely be issued very soon, before any public comment period. OSHA will likely issue an Emergency Temporary Standard (ETS). OSHA used this approach to impose a vaccine mandate on healthcare workers in June 2021. The ETS became effective a few days after it appeared in the federal register. According to CRS, the last time OSHA tried to use an ETS was for a 1981 asbestos rule. And that rule was stayed. Section 6(c)(1) of the OSHA Act allows the Secretary to issue an ETS if he determines “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.” Is COVID-19 a “hazard,” as this term has been traditionally understood, in the same sense as a dangerous chemical? Are there other provisions of OSHA that govern exposure to diseases? If so, Section 6(c)(1) may be read to be limited to chemical hazards, rather than airborne illnesses. I need to give this issue some more thought.
Third, does OSHA have the delegated authority to impose this requirement? I have not yet had time to study the statutory framework in any depth. For now, I will raise a broad question based on the major question
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