A new analysis by the Congressional Research Service, Congress’ nonpartisan research arm, suggests that President Joe Biden’s intention to require all workers at companies with at least 100 employees to get vaccinated against COVID-19 might not pass legal muster.
On September 9, Biden said that he would use the Occupational Safety and Health Administration (OSHA)’s jurisdiction over workforce safety to require some 80 million workers to get vaccinated against coronavirus or undergo weekly testing. To get around the fact that enacting an OSHA rule typically takes four to seven years, it will use emergency authority known as Emergency Temporary Standards (ETS).
“OSHA may promulgate an ETS without supplying any notice or opportunity for public comment or public hearings. An ETS is immediately effective upon publication in the Federal Register. Upon promulgation of an ETS, OSHA is required to begin the full rulemaking process for a permanent standard with the ETS serving as the proposed standard for this rulemaking. An ETS is valid until superseded by a permanent standard, which OSHA must promulgate within six months of publishing the ETS in the Federal Register,” CRS’s report said.
Using emergency authority requires that “employees are exposed to grave danger” and that “such emergency standard is necessary to protect employees from such danger.”
“The term grave danger, used in the first mandatory determination for an ETS, is not defined in statute or regulation. The legislative history demonstrates the intent of Congress that the ETS process ‘not be utilized to circumvent the regular standard-setting process,’ but the history is unclear as to how Congress intended the term grave danger to be defined,” CRS said.
OSHA has resorted to emergency rules only “sparingly,” but in the few cases it has used them, the agency’s moves have not stood up well against court scrutiny. Prior to coronavirus, OSHA issued an ETS only nine times, and courts fully overturned four, and partially vacated a fifth.
In 1984, the U.S. Court of Appeals for the Fifth Circuit invalidated a 1983 rule on asbestos exposure, saying, “OSHA did not provide sufficient support for its claim that 80 workers would ultimately die because of exposures to asbestos during the six-month life of the ETS.”
It is not enough to show that coronavirus can be deadly: the second prong, that the measures are “necessary to protect employees,” requires showing that the measures would meaningfully alter outcomes from workplace-related exposure. In the asbestos case, the court “dismissed OSHA’s argument that the ETS was necessary,” saying that even though asbestos was dangerous, other rules already required respirator use that would have a similar effect. In this case, the government might have to prove that vaccinated employees still face “grave” danger, even though they are vaccinated.
In the 1984 asbestos case, the court also indicated that OSHA was using an emergency rule to try to avoid legal scrutiny, writing that “fear of a successful judicial challenge to enforcement of OSHA’s permanent standard regarding respirator use hardly justifies resort to the most dramatic weapon in OSHA’s enforcement arsenal.”
Until this year, OSHA had not issued an ETS since. In 2006 it considered one over a fake butter chemical that was causing “popcorn lung” in food workers, but determined it likely could not meet the “necessity requirement” since most people were already taking steps to ameliorate the problem on their own — in that case, manufacturers removing the compound from their products.
ETS rules are only supposed to last six months. But the problem is that there is no reason to think any permanent OSHA rule can be passed during that time period. Of the four previous ETS rules that were not overturned by courts, a permanent replacement was issued within or shortly after the six-month period, but these were all before 1980. Since then, red tape has swelled to the point where this is no longer likely.
The courts have never ruled on whether an emergency rule can be extended beyond six months, though one 1974 court ruling provides some support for the idea.
Another problem is whether a permanent rule can be justified at all. Since any rule must be “necessary” to protect workers from grave danger, a permanent mandate may not be appropriate since the coronavirus pandemic will presumably end. A similar rule promulgated by the state of Virginia is vague about its sunset provisions.
The Daily Wire, which employs more than 100 people, has said it will fight the employer vaccine mandate, even though its co-founders are vaccinated and encourage others to get vaccinated voluntarily.
The law says, CRS noted, that “any person who is ‘adversely affected’ by a standard may file, within 60 days of its promulgation, a petition challenging the standard with the U.S. Court of Appeals for the circuit in which the person lives or maintains his or her principal place of business. A petition for judicial review does not automatically stay the implementation or enforcement of the standard. However, the court may order such a stay. OSHA estimates that post-promulgation activities, including judicial review, can take between four and 12 months after the standard is promulgated.”
The Biden administration’s OSHA previously used an ETS, issued on June 21, 2021, that “requires health care employers to develop COVID-19 plans and protect employees from COVID-19 exposure through health screenings, personal protective equipment (PPE), building ventilation, and physical distancing and barriers. The ETS requires healthcare employers to remove any employees with COVID-19 from the workplace while providing them with certain benefits. Health care employers are not required to mandate that their employees receive a COVID-19 vaccine but must provide reasonable time off for employees to receive a vaccine and recover from any vaccine-related side effects.”
CRS said in that rule, OSHA argued that “the development, availability, and overall success of the COVID-19 vaccines in the United States do not obviate the need for an ETS but rather serve as evidence of the need for an ETS. OSHA states that it has a statutory responsibility to protect all workers, including those who are unvaccinated, regardless of the reason for those workers’ vaccine refusals. OSHA claims that the ETS encourages vaccination among health care workers, as many as 25% of whom may not be fully vaccinated, by exempting fully vaccinated workers from certain requirements in the ETS.”