On September 9, President Biden announced a directive to the Labor Department to develop a temporary emergency rule for businesses with 100 or more employees that would require workers to be fully vaccinated or be tested at least once a week. Biden declared that, “We’re going to protect vaccinated workers from unvaccinated co-workers. We’re going to reduce the spread of COVID-19 by increasing the share of the workforce that is vaccinated in businesses all across America.”

Thursday morning, the Occupational Safety and Health Administration announced that starting on January 4 — 60 days from today’s publication — new vaccination-or-test requirements for businesses with more than 100 workers will go into effect, as well as a vaccine mandate for health-care workers at facilities participating in Medicare and Medicaid.

OSHA is issuing the vaccine mandate under an “emergency temporary standard,” which means the regular public-comment period was skipped. Emergency temporary standards are applied when “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.”

Needless to say, it is unusual for it to take two months to write up the regulations for an emergency temporary standard, and even more unusual for an “emergency temporary standard” to not take effect for an additional two months after the regulations are issued. Why, it’s almost as if the National Association of Wholesaler Distributors warned the Biden administration that the mandate would disrupt the economy, and that the Biden administration backed off:

NAW urges that the Executive Order’s implementation be revised to avoid this calamity and provide alternatives to promote safety, including testing, and consider a short-term delay to provide time to carry out these changes and to avoid further supply chain disruptions in the coming months.

[T]here are still employees across the distribution industry who – for whatever reason — refuse to be vaccinated. This reality will present new challenges if this Executive Order is implemented as written: thousands of valued employees will be forced out of their jobs shortly before the holidays, the already compromised supply chain will be under added pressure during the busiest time of the year, and the already tight labor market will make it immeasurably more difficult to replace laid off employees, compounding supply chain disruptions.

As I noted above, the vaccine mandate will now not go into effect until January. That also has legal consequences. An Emergency Temporary Standard is an exception to the usual formal rulemaking procedures. The Occupational Safety and Health Administration (OSHA) says that it is requesting comments, but it is still evading the full, legal requirements for a permanent rule. As the notice admits:

The OSH Act in section 6(c)(1) states that the Secretary “shall” issue an emergency temporary standard (ETS) upon a finding that the ETS is necessary to address a grave danger to workers. See 29 U.S.C. 655(c). In particular, the Secretary shall provide, without regard to the requirements of chapter 5, title 5, United States Code, for an emergency temporary standard to take immediate effect upon publication in the Federal Register if the Secretary makes two determinations: That employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and that such emergency standard is necessary to protect employees from such danger. 29 U.S.C. 655(c)(1)…The ETS provision, section 6(c)(1), exempts the Secretary from procedural requirements contained in the OSH Act and the Administrative Procedure Act, including those for public notice, comments, and a rulemaking hearing . . .

The Secretary must issue an ETS in situations where employees are exposed to a “grave danger” and immediate action is necessary to protect those employees from such danger. 29 U.S.C. 655(c)(1); Pub. Citizen Health Research Grp. v. Auchter, 702 F.2d 1150, 1156 (D.C. Cir. 1983)…In demonstrating whether OSHA had shown that an ETS is necessary, the Fifth Circuit considered whether OSHA had another available means of addressing the risk that would not require an ETS. Asbestos Info. Ass’n, 727 F.2d at 426 (holding that necessity had not been proven where OSHA could have increased enforcement of already-existing standards to address the grave risk to workers from asbestos exposure).

Although Congress waived the ordinary rulemaking procedures in the interest of “permitting rapid action to meet emergencies,” section 6(e) of the OSH Act, 29 U.S.C. 655(e), requires OSHA to include a statement of reasons for its action when it issues any standard. Dry Color Mfrs., 486 F.2d at 105-06 (finding OSHA’s statement of reasons inadequate). By requiring the agency to articulate its reasons for issuing an ETS, the requirement acts as “an essential safeguard to emergency temporary standard-setting.” Id. at 106. However, the Third Circuit noted that it did not require justification of “every substance, type of use or production technique,” but rather a “general explanation” of why the standard is necessary. Id. at 107. ETSs are, by design, temporary in nature. Under section 6(c)(3), an ETS serves as a proposal for a permanent standard in accordance with section 6(b) of the OSH Act (permanent standards), and the Act calls for the permanent standard to be finalized within six months after publication of the ETS. 

Here is what the administration cites as its reason for using emergency power:

Moreover, in recent months, an increasing number of states have promulgated Executive Orders or statutes that prohibit workplace vaccination policies that require vaccination or proof of vaccination status, thus attempting to prevent employers from implementing the most efficient and effective method for protecting workers from the hazard of COVID-19 (see, e.g., Texas Executive Order GA-40, October 11, 2021; Montana H.B. 702, July 1, 2021; Arkansas S.B. 739, October 4, 2021 and Arkansas H.B. 1977, October 1, 2021; AZ Executive Order 2021-18, August 16, 2021). While some States’ bans have focused on preventing local governments from requiring their public employees to be vaccinated or show proof of vaccination, the Texas, Montana, and Arkansas requirements apply to private employers as well. Other states have banned local ordinances that require employers to ensure that customers who enter their premises wear masks, thus endangering the employees who work there, particularly those who are unvaccinated (see, e.g., Florida Executive Order 21-102, May 3, 2021; Texas Executive Order GA-34, March 2, 2021).

In short, at the present time, workers are becoming sick and dying unnecessarily as a result of occupational exposures, when there is a simple and effective measure, vaccination, that can largely prevent those deaths and illnesses (see Grave Danger, Section III.A. of this preamble). Congress charged OSHA with responsibility for issuing emergency standards when they are necessary to protect employees from grave danger. 29 U.S.C. 655(c). In light of the current situation, OSHA is issuing this emergency rule. 

The administration is trying to buy some time here — a rule hanging in the air and not enforced for months will prompt employers to start complying in advance, but cannot be challenged in court until it goes into effect. But once that can happen, courts will notice that this is not, in fact, “immediate” action or anything like it, and the conditions cited — contrary state orders, workers getting infected and dying — are not new. In fact, it may well be the case that the rate of infection, hospitalization, and death may be lower in January than it was in September (or, for that matter, in the spring and summer of 2021, when the vaccine was available and resistance to vaccination was already a public-health controversy). It is certain to be the case that more workers are vaccinated by then.

This being a case of national importance, it will likely move up the judicial ladder quickly, and could produce conflicting decisions, so the odds of this rule ending up before the Supreme Court are fairly high. One thing we saw repeatedly during the Trump and Obama years is that Chief Justice John Roberts really does not like it when executive or administrative powers are invoked without the executive branch doing its homework. On occasion, as in Shelby County v. Holder, Roberts has done the same thing to Congress. The Biden administration could have a very hard time explaining to the chief justice why it is entitled to assert emergency powers that exist to address “immediate” threats, then do nothing with them for four months.

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