After yesterday’s blog posts, you must be somewhat perplexed.
First, why did I publish a blog post yesterday with the same title but no actual body? Well, you see, I planned to blog yesterday about the upcoming oral argument on the OSHA COVID-19 vax-or-test mandate and set that post to publish on January 4. But then I pivoted into a different CDC COVID-19 testing post instead. However, I forgot to change the date on which the vax-or-test mandate post would publish and…
Wait for it…
(Perhaps, I should hire an editor.)
Now that my mistakes are behind me for 2022, I’ll blog phallus-free about what OSHA will say to the Supreme Court on Friday to convince it not to disturb the Emergency Temporary Standard (ETS) that OSHA will begin enforcing on Monday.
Bruh, it’s not a “vaccine mandate.”
Less colloquially, OSHA will accentuate that the ETS gives companies with 100 or more employees the option, but not the duty, to require COVID-19 vaccinations for employees. If an employer wants to provide its employees the choice to test weekly and mask, they can do so.
Indeed, the ETS only requires covered employers to implement a written policy describing which option(s) it will provide to workers. That policy must require all employees to get fully vaccinated against COVID-19. Alternatively, employees who are not fully vaccinated can wear masks and supply proof of a negative COVID-19 test at least once a week when working with others in indoor settings.
The ETS is within OSHA’s power to protect employees.
The Occupational Safety and Health Act of 1970 (the OSH Act) provides that OSHA “shall” issue an ETS when the agency “determines” that an ETS is “necessary” to protect employees from a “grave danger” resulting from, among other things, exposure to “physically harmful” “agents” or “new hazards.”
And that’s what OSHA has done here (according to OSHA). Specifically, OSHA determined that:
- COVID-19 is both a physically harmful agent and a new hazard;
- exposure to that potentially deadly virus in the workplace presents a grave danger to unvaccinated employees who are at most significant risk of contracting and spreading the virus at work and suffering serious health consequences as a result; and
- the ETS is necessary to protect those employees from the danger of contracting COVID-19 at work.
Plus, the OSH Act says explicitly that “immunization” may be “authorize[d] or require[d]” … “where such is necessary for the protection of the health or safety of others.”
Any constitutional arguments are overblown.
Congress charged OSHA with protecting the safety and health of workers in all businesses that affect interstate commerce. The OSH Act says that OSHA can issue an ETS. Congress must have known that an ETS like this might require substantial regulations that apply nationwide and carry high compliance costs. Heck, it specifically directed OSHA to use its existing regulatory authorities “to carry out COVID-19 related worker protection activities” and has appropriated funds designated for OSHA to address workplace exposure to COVID-19.
There’s no irreparable harm, and the public interest favors an ETS.
Covered businesses assume that compliance costs and potential worker shortages will irreparably harm them. WRONG! OSHA’s detailed economic and empirical analysis shows only modest costs, and workers won’t leave if they can mask and test instead of mandatory vaccination.
Conversely, a delay of the ETS harms governmental and public interests because workers will get sick and overwhelm hospitals, while many will die.
And how do I know that the government will argue these points on Friday?
I read the government’s brief. (And perhaps quoted from it liberally.)