A Backgrounder on the Proposed OSHA Vaccination Mandate and Likely Legal Challenges
President Biden’s announcement that the Occupational Safety and Health Administration (OSHA) will require large employers to mandate the vaccination or testing of their employees has already prompted a raft of commentary and controversy. The standard, once issued, is sure to invite legal challenges, the most serious of which will likely focus on the yet-to-be-disclosed particulars of the rule. This post is intended to provide some background on OSHA’s authority and identify the legal issues the rule is likely to create. (As will become clear, I see some of the issues differently from some of my co-bloggers.)
A quick note: My employer requires vaccination (in addition to periodic testing) and I support that. I wish more people were vaccinated and that more employers required it of their employees. I also believe that the control of infectious disease is one of the more important functions of government. This post is not about those questions, however, but about OSHA’s authority to adopt the standard the White House has announced.
The White House announcement describes the new policy as follows:
The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100 employees.
The same proposed standard will also require employers “to provide paid time off for the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination.”
We do not have the details of the OSHA rule—and the details will matter. Nonetheless, it is possible to identify the legal issues that this new OSHA standard will (and will not) raise.
For starters, it is important to recognize that this proposed standard represents a far more traditional use of agency authority than did the CDC’s eviction moratorium. While this is unquestionably an aggressive use of OSHA authority, it does not represent a dramatic departure from the sorts of things OSHA has done over the past fifty years, and does not raise quite the same specter of an agency without unlimited authority that the CDC moratoria did. This doesn’t mean the standard should or will survive legal challenge, but it does indicate the issues are somewhat different.
Under the Occupational Safety and Health Act of 1970, OSHA has broad authority to set workplace safety standards (“occupational safety and health standards”), including standards aimed at reducing the threat of disease. Section 3(8) of the OSHAct provides:
The term “occupational safety and health standard” means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.
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Article from Latest – Reason.com