COMMENTARY
Late last year, the Occupational Safety and Health Administration’s (OSHA) issued an Emergency Temporary Standard (ETS) that required employers of 100 or more workers to ensure their workers receive vaccinations for COVID-19 or be tested for the disease on a regular basis. That ETS, of course, was recently struck down by the Supreme Court.
At the same time that OSHA issued the ETS, it also chose to launch a formal rulemaking proceeding which was aimed at eventually turning the ETS into a permanent regulation. That proposed rulemaking got lost in the uproar sparked by the ETS, and the subsequent court challenges mounted against it, along with the controversies that arose over the mounting number of other vaccination and masking mandates, which at times seemed to be changing on almost a daily basis.
When OSHA announced on Jan. 25 that it had withdrawn its COVID-19 vaccine mandate in the wake of the Supreme Court defeat, it may have seemed to many that the ruling had settled the vaccine issue—but that assumption couldn’t be more wrong. On Jan. 26, the agency reported that it would continue to press ahead with developing a permanent rule designed to accomplish the same goals as the ETS it was forced to withdraw following the High Court defeat.
Marty Walsh, Secretary of the Department of Labor (which OSHA is a part of), also gave an explicit warning to employers when he reacted to the Supreme Court ruling. “OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program and [Occupational Safety and Health (OSH) Act] General Duty Clause,” he stated.
In order to issue a General Duty violation, OSHA must prove there is a recognized hazard that poses the risk of death or serious harm, and that a feasible means of protection exists, points out Charles Palmer, a partner with the law firm of Michael Best & Friedrich. The recognition and “feasible” means of protection are generally identified in industry consensus standards or other guidance documents.
“Certainly, guidance issued by Centers for Disease Control and Prevention (CDC) could be identified as a source for the employer’s general duty, but as we have all experienced, that guidance changes rapidly and contains so much detail, it is difficult to know exactly what parts of the guidance will meet the duty,” he admits.
Another source is OSHA’s own guidance, Palmer says. This August 2021 guidance identified 11 elements to describe the role of employers in protecting workers:
- Facilitate (but not necessarily require) employees getting vaccinated.
- Instruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive, and all workers with COVID-19 symptoms to stay home from work.
- Implement physical distancing in all communal work areas for unvaccinated and otherwise at-risk workers.
- Provide workers with face coverings or surgical masks as appropriate.
- Educate and train workers on your COVID-19 policies and procedures.
- Suggest or require that unvaccinated customers, visitors, or guests wear face coverings.
- Maintain ventilation systems.
- Perform routine cleaning and disinfection.
- Record and report COVID-19 infections and deaths.
- Implement protection from retaliation and set up an anonymous process for workers to voice concerns.
- Follow other applicable mandatory OSHA standards including those governing PPE, respiratory protection, sanitation, employee access to medical and exposure records.
Palmer notes that while the vaccine ETS contained a business size threshold, the OSHA General Duty Clause applies to all employers, so this guidance is not limited to employers with 100 or more employees. If you implemented a COVID-19 policy already, consider updating it to address these 11 elements, and watch for any new announcements from OSHA in the coming weeks, he recommends.
How a Rule Is Made
One problem with DOL’s strategy is that by pursuing the normally drawn out, step-by-step rulemaking process, OSHA will only directly address one of the Supreme Court majority’s objections to the ETS—that it had been abruptly declared by administrative fiat instead of being developed like other federal regulations as required by Congress, including allowing time for the gathering of data to support it and providing an opportunity for public input.
All federal agencies are directed to take certain specific steps outlined in the Administrative Procedures Act (APA) when creating a rule. APA requirements include allowing time for the public to review and comment at each stage in the process. Over the years, Congress added other requirements, including obligations for agencies to perform environmental and small business impact studies.
A proposed rule only can become a final regulation that an agency is allowed to enforce after all of these steps are completed. Once the final rule is announced, then it can be challenged in court by those who believe they will be negatively impacted by it. In cases where the rules are relatively benign and noncontroversial, this whole process usually takes about six months.
However, when the rule generates intense controversy and the courts become involved, the entire process can take years. For instance, the most recent changes that were made to the Department of Transportation’s commercial truck and bus driver hours-of-service regulations ended up taking 15 years to complete.
Although OSHA’s proposed vaccine regulation would address its failure to follow the APA when it sprung the vaccine ETS on employers, it fails to address another concern about the agency’s authority to address non-work-related illnesses that was raised by the 6-3 majority of Supreme Court justices who struck down the standard.
The justices pointed out that the agency’s enabling legislation, the 1970 OSH Act, specifically limits OSHA to addressing injuries and illnesses that occur to employees at work, but not those affecting the public in general, such as the flu and off-the-job automobile accidents, for example.
In fact, DOL’s insistence that OSHA pursue this rulemaking proceeding is reminiscent of the Biden administration’s defiance in the face of last year’s Supreme Court ruling that the CDC lacked the authority to halt nationwide apartment and house evictions. The administration then directed the CDC to issue the same order worded differently, only to see it swiftly struck down again by the court.
Meanwhile, time is growing short for the other governmental testing mandates. A federal appeals court decision that was handed down after the Supreme Court’s rejection of the OSHA ETS also struck down a separate Biden administration decree ordering that all federal employees must submit to the jab.
The unpopularity of government-imposed initiatives undertaken to combat the Coronavirus recently manifested itself in Canada with the truckers’ protest over vaccine requirements in that country and at the border with the United States. Meanwhile, parents across the U.S. have grown more vocal in their objections to the masking of students in schools, and some states are moving to remove some of the lockdown orders that have been in place.
People are losing patience with these restrictions and have become less reticent about expressing their opinions. Elected officials are aware of this and are making their decisions with one eye on the elections looming this fall.