Saturday, September 11, 2021

Coronavirus Update 9-11-21: Here is why the vaccination ETS that Biden has directed OSHA to issue is likely illegal

President Biden has directed OSHA to issue an Emergency Temporary Standard (ETS) mandating that all employers with 100 or more employees mandate the Covid vaccine for its employees or mandate weekly Covid testing.

Will this ETS pass the certain judicial challenges it will quickly face?

TL;DR: (As much as it pains me to have to write this) OSHA’s Covid vaccine mandate ETS is almost certainly illegal. Here’s why.

Unlike OSHA’s traditional standards, an ETS skips OSHA’s long rulemaking process. It allows the agency instead to issue a temporary six-month standard to address a bona fide safety emergency in the workplace as “necessary to protect workers from grave danger.”

OSHA has issued only 10 emergency temporary standards prior to this one. Of those 10, six have been challenged in court. Only one (Acrylonitrile, a carcinogenic chemical used in rubber manufacturing) survived that challenge, all the way back in 1978.

There is no doubt that the ongoing Covid pandemic continues to be a national emergency. But that does mean that this ETS is “necessary to protect workers from grave danger.”

For two reasons, the ETS is underinclusive.

What’s the grave danger if this ETS only applies to employers with 100 or more employees? Aren’t the workplaces with fewer employees also subject to the same danger? If OSHA’s not protecting them, too, this ETS is not “necessary to protect workers from grave danger.”

Further, the ETS’s weekly testing alternative is problematic. Weekly testing only picks up one small slice of time during that week, and otherwise allows for the risk of a Covid+ employee entering the workplace. Thus, it actually permits the grave danger it’s trying to eliminate.

The ETS is also overinclusive. By addressing “all employees” it presumably will cover even those who are working from home and never entering the workplace or presenting any risk of danger, grave or otherwise.

Finally, we already have measures in place to protect employees in the workplace. They are called masks, distancing, and the other Covid mitigation measures OSHA already recommends, along with the protection from those who are already vaccinated.

Thus, while I continue to believe that universal vaccinations are the best and only way out of this pandemic, I can’t say that failing to vaccinate all employees poses a grave danger, provided employers follow other safety and mitigation measures.

Philosophically, I’d like these legal challenges to fail because I believe in the vaccine’s universal adoption. Legally, however, I don’t see a way for this ETS to pass judicial muster.

Finally, if you’re unvaccinated, please get vaccinated ASAP. If enough of us got our jabs in the first place, we wouldn’t need to have these legal discussions about mandates and OSHA emergency standards.