The Fate of OSHA’s Vaccine Mandate
The opinions expressed in this post are the author’s and do not necessarily reflect those of AIHA, The Synergist, or SynergistNOW.
On Nov. 5, OSHA issued an emergency temporary standard (ETS) that requires employers with more than 100 employees to verify the vaccination status of their employees and require those who are not vaccinated to wear masks and undergo weekly COVID-19 testing. Within days, the Fifth Circuit Court of Appeals issued an order (PDF) to OSHA to place the ETS on hold and to take no further steps in implementing or enforcing the mandate. This hold is temporary and is pending further judicial review.
As a result, OSHA announced on Nov. 16 that it has "suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation." This announcement does not mean OSHA has given up or that employers should stop their plans for compliance.
Several state attorneys general and other groups have filed lawsuits challenging the ETS. These suits can be consolidated before a court randomly selected by the federal judicial panel on multistate litigation. As a result of this process, the Sixth Circuit Court of Appeals will be authorized to uphold or overturn the Fifth Circuit's stay. However, cautious employers may still want to move forward with developing plans for compliance while also keeping a close eye on the final decision.
Employers who are federal contractors or healthcare providers should not make decisions based on OSHA's announcement and the Fifth Circuit's order. Those employers are subject to different, although similar, federal mandates: the federal contractor mandate and the Medicare Omnibus Staff Vaccine Mandate Interim Final Rule (PDF) published in November by the Centers for Medicare & Medicaid Services. This week, both of these governmental mandates were blocked by federal judges.
OSHA’s ETS was directed by an executive order from the White House. Many believe that mandates are the only way to improve the uptake of coronavirus vaccines. As of this posting, CDC reports that 197 million people in the U.S. are fully vaccinated. That is 60 percent of the overall population. The percent uptake increases by age, likely due to the perceived risk of death from infection but also to the amount of time older populations have been authorized to receive the vaccine.
In response to an OSHA petition, the Fifth Circuit Court of Appeals was pointed in reaffirming its stay (PDF):
The Occupational Safety and Health Administration (OSHA) “reasonably determined” in June 2020 that an emergency temporary standard (ETS) was “not necessary” to “protect working people from occupational exposure to infectious disease, including COVID-19.” [. . .] This was not the first time OSHA had done this; it has refused several times to issue ETSs despite legal action urging it do so. [. . .] In fact, in its fifty-year history, OSHA has issued just ten ETSs. Six were challenged in court; only one survived. The reason for the rarity of this form of emergency action is simple: courts and the Agency have agreed for generations that “extraordinary power is delivered to OSHA under the emergency provisions of the Occupational Safety and Health Act,” so “[t]hat power should be delicately exercised, and only in those emergency situations which require it.” Fla. Peach Growers Ass’n v. U.S. Dep’t of Lab., 489 F.2d 120, 129–30 (5th Cir. 1974).
This blogger believes that employers should mandate vaccines to the extent they believe necessary and their finances and worker attrition will allow. But OSHA mandating a one-size-fits-all policy is misguided. AIHA has previously expressed support for the ETS, but in my opinion, the ends do not justify the means.