As part of the White House’s aggressive new approach to fighting the pandemic, the president directed the Labor Department’s regulatory agency, the Occupational Safety and Health Administration (OSHA), to mandate all businesses with at least 100 employees either require all of them to be vaccinated or submit to weekly COVID testing.
The agency has the authority to issue an ’emergency temporary standard’ (ETS) if it can prove workers are exposed to a grave danger and the rule is deemed necessary to address it.
A Congressional report updated in July notes how rarely emergency standards are used. Before the COVID pandemic the last OSHA ETS was struck down in 1983, when a federal court said the agency failed to support its claim that asbestos exposure in the workplace needed to be further reduced due to a significant adverse impact on employees’ health.
OSHA issued an ETS in June to protect health care workers from COVID by mandating workplaces like hospitals and nursing homes to draft a plan on keeping employees safe, improving ventilation, supply adequate PPE and implement social distancing measures or build barriers where that’s not possible.
It also requires relevant companies to give employees paid time off to get vaccinated or paid leave in the event they test positive.
And while the idea might be ‘well-intentioned,’ a Friday morning op-ed claims, Biden also risks ‘shredding the social fabric’ of an already divided country by stretching the bounds of constitutionality.
‘The president should not — and likely does not — have the power to unilaterally compel millions of private sector workers to get vaccinated or risk losing their jobs,’ Republican commentator Robby Soave wrote in the New York Times.
Duke University senior lecturing fellow Dan Bowling pointed out to McClatchy News that OSHA’s investigative and enforcement capabilities are relatively weak compared to the IRS or Securities and Exchange Commission.
‘If somebody falls off a ladder that was broken in a place of business and breaks his or her leg, that’s pretty easy to prove employer liability. The employer would have to report the accident under OSHA,’ Bowling said. ‘If someone catches COVID who works somewhere that doesn’t follow the vaccine mandate, how do you prove that?’
Among the parties challenging the strict measure in court are the Republican National Committee, as well as the governors of at least nine states.
South Dakota Governor Kristi Noem, who’s resisted implementing a mask mandate even when its COVID hospitalizations and deaths were among the highest in the country, promised to see Biden ‘in court.’
Georgia’s Gov. Brian Kemp vowed to ‘pursue every legal option available to the state of Georgia to stop this blatantly unlawful overreach.’
But in states like Montana, Texas and Florida, which all said they intend to sue, OSHA’s ETS rules predate similar existing state guidelines – which would make a legal case more of an uphill battle than states that created their own OSHA-approved regulatory bodies after the fact.
What is OSHA?
The Occupational Safety and Health Administration was created by President Richard Nixon under the Occupational Safety and Health Act of 1970.
OSHA has jurisdiction over most private and public workplaces across the country, but some states have their own OSHA-approved regulatory agencies.
The agency regulates health and safety standards in the workplace. To enforce that it’s able to conduct unannounced inspections ensuring those standards are met.
Since it was created workplace deaths fell dramatically by nearly 63 percent, according to OSHA. An estimated 14,000 workers – or 38 per day – were killed on the job in 1970. But 2018 the number fell to 5,250, despite a doubling of the total US workforce.
OSHA’s process for enacting new workplace standards includes consulting a number of relevant advisory committees linked to the Labor and Heath and Human Services Departments, as well as consulting business owners and allowing a window for public input, at least 30 days but ‘usually 60 days or more.’
Businesses in states with their own OSHA-approved agencies can ask for a ‘variance’ in the rule if they can’t comply by the effective date.
If the state is under federal OSHA jurisdiction then the agency will have to work with the state to determine if the exception can be granted
What is an Emergency Temporary Standard (ETS)?
An ETS allows OSHA to bypass the consultation process and public input window if it determines ‘workers are in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards and that an emergency standard is needed to protect them.’
Emergency standards can take effect immediately but only stay in effect until replaced by a permanent standard.
That proposed permanent standard must go through the regular bureaucratic channels and be decided upon within six months.
During that time the temporary rule can be challenged in an appropriate federal court.
OSHA can issue ‘temporary variance’ rules to employers who prove they can’t comply with a regulation in time, but they have to demonstrate they are taking all the necessary and possible steps to protect workers, and show a roadmap toward compliance.