Coronavirus

The Biden Administration's 'Emergency' Vaccine Mandate May Be Vulnerable to Legal Challenges

OSHA has rarely used this option, which avoids the usual rule-making process, and most challenges to such edicts have been successful.

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The Biden administration plans to impose a vaccination mandate on private-sector employees through an emergency temporary standard (ETS), a rarely used option that allows the Occupational Safety and Health Administration (OSHA) to avoid the usual rule-making process. The history of such standards suggests that the new rule, which demands that every U.S. business with 100 or more employees require them to be vaccinated or submit to weekly virus testing, may be vulnerable to legal challenges.

In the half-century after Congress approved the Occupational Safety and Health Act in 1970, the Congressional Research Service (CRS) noted in a report updated on July 13, OSHA issued an ETS just 10 times. Before June 21, when OSHA used an emergency standard to require specific COVID-19 precautions for health care workers, it had not issued an ETS in 38 years, and it had never cited the danger posed by a communicable disease as the justification for an ETS.

Of the nine emergency standards issued between 1971 and 1983, three (dealing with asbestos, vinyl chloride, and the soil fumigant DBCP) were not challenged. Of the six that were challenged in court, four (dealing with asbestos, benzene, organophosphorus pesticides, and diving operations) were stayed or vacated, one (dealing with various carcinogens) was partly vacated, and one (dealing with vinyl cyanide) was upheld. In other words, legal challenges were partly or fully successful 83 percent of the time.

From OSHA's perspective, an ETS offers clear advantages over the time-consuming procedures it typically must follow to impose new regulations, which include advance notice and an opportunity for public comment. In 2012, the Government Accountability Office examined 59 "significant" standards that OSHA issued between 1981 and 2010. It found that the average time between initial consideration of a standard and its promulgation was nearly eight years. Even after OSHA published a notice of proposed rule making in the Federal Register, an average of more than three years elapsed before the standard was finalized.

According to a flowchart that OSHA published in 2012, the CRS report notes, "the estimated time from the start of preliminary rulemaking to the promulgation of a standard ranges from 52 months (4 years, 4 months) to 138 months (11 years, 6 months)." After a notice of proposed rule making is published, "the estimated length of time until the standard is promulgated ranges from 26 months (2 years, 2 months) to 63 months (5 years, 3 months)."

By contrast, OSHA can issue an ETS "without supplying any notice or opportunity for public comment or public hearings." The standard takes effect immediately and lasts until it is superseded by a permanent rule, which OSHA is notionally required to issue within six months. That requirement seems unrealistic, the CRS notes, given "historical and currently expected time frames for developing and promulgating a standard."

While the ETS option is undeniably convenient for OSHA, it requires a special justification. OSHA must "determine" that "employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards." It also must determine that its ETS is "necessary to protect employees from such danger." Both of those judgments are subject to judicial review.

"The term grave danger, used in the first mandatory determination for an ETS, is not defined in statute or regulation," the CRS report says. "Although the federal courts have ruled on challenges to previous ETS promulgations, the courts have provided no clear guidance as to what constitutes a grave danger."

In 1984, the U.S. Court of Appeals for the 5th Circuit rejected an ETS lowering the limit for workplace asbestos exposure. The court said OSHA had failed to adequately support its finding of "grave danger," which was based largely on its claim that the six-month emergency standard would prevent 80 deaths from asbestos exposure. "It is apparent from an examination of the record," the 5th Circuit said, "that the actual number of lives saved is uncertain, and is likely to be substantially less than 80."

The appeals court also concluded that OSHA had failed to show its ETS was "necessary," noting that existing standards already required the use of respirators. That requirement, OSHA argued, was "unenforceable absent actual monitoring to show that ambient asbestos particles are so far above the permissible limit that respirators are necessary." But the court said "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."

To justify its June 21 ETS for employers in the health care industry, OSHA said it "has determined that healthcare employees face a grave danger from the new hazard of workplace exposures to SARS-CoV-2 except under a limited number of situations (e.g., a fully vaccinated workforce in a breakroom)." It noted the possible consequences of COVID-19 infection, including mild symptoms as well as potentially lethal cases; the danger of transmission in shared workspaces; and the "elevated risk" of dealing with patients who may be infected.

OSHA argued that its ETS was necessary because neither existing standards and guidance nor employers' general duty to provide a workplace "free from recognized hazards that are causing or are likely to cause death or serious physical harm" adequately addressed the risks posed by COVID-19. It estimated that 25 percent of health care workers remained unvaccinated and added that questions remained about the duration of the protection offered by vaccines and their effectiveness against new coronavirus variants.

Notably, the safeguards required by the June 21 ETS included face masks but did not include mandatory vaccination. That's the opposite of the approach taken by the ETS that the Biden administration described yesterday. Even given the special hazards of health care settings (for patients as well as employees), OSHA did not think it was necessary to require vaccination, although it did require that medical workers be allowed time off to recover from the side effects of inoculation.

The Biden administration's new rule for health care facilities that participate in Medicare or Medicaid, by contrast, does require vaccination, and the ETS for other private employers will require vaccination or regular testing for workers in every sector of the economy, including people who are already resistant to COVID-19 because they developed antibodies in response to prior infections. The only exception is for companies with fewer than 100 employees.

The White House says that vaccine mandate will affect more than 80 million employees, half of the civilian labor force. Taking into account the new mandates for federal contractors and hospitals that accept Medicare or Medicaid, the Associated Press reports, vaccination will be required for "as many as 100 million Americans." Businesses that defy the rule for companies with 100 or more employees will face fines of $14,000 for each violation.

While many large employers already require vaccination, that does not mean every business covered by the federal mandate will accept it without a fight. In addition to possible constitutional challenges, businesses that object to the mandate can argue that OSHA has failed to meet the statutory criteria for an ETS, and they might very well prevail on that basis, given the legal track record of such edicts.

The U.S. Chamber of Commerce said it "will carefully review the details of the executive orders and associated regulations." A spokeswoman for the American Hotel and Lodging Association likewise said "our members are in the process of reviewing the president's new guidance."

The National Federation of Independent Business already has signaled that it is not happy with the vaccination mandate. "Small business owners and their employees want to operate in a safe and healthy manner that allows them to stay open," said Kevin Kuhlman, the organization's vice president for government relations. "Additional mandates, enforcement, and penalties will further threaten the fragile small business recovery."

Rick Murray, chairman of the government affairs committee at the Arizona Small Business Association, was even more critical. "This is really as far-reaching as government can get," he told The Washington Post, saying he was "shocked" by the mandate and expected that the organization's members would resist it. "That's really a free-enterprise decision that should be made by companies, and not the government."

Republicans are promising to fight the vaccination mandate in court. South Carolina Gov. Henry McMaster said "we will fight them to the gates of hell to protect the liberty and livelihood of every South Carolinian." Georgia Gov. Brian Kemp said he will "pursue every legal option available to the state of Georgia to stop this blatantly unlawful overreach by the Biden administration."

The Republican National Committee (RNC) likewise says it will sue to block the mandate. "Joe Biden told Americans when he was elected that he would not impose vaccine mandates," RNC Chairwoman Ronna McDaniel said in a press release. "He lied. Now small businesses, workers, and families across the country will pay the price. Like many Americans, I am pro-vaccine and anti-mandate. Many small businesses and workers do not have the money or legal resources to fight Biden's unconstitutional actions and authoritarian decrees, but when his decree goes into effect, the RNC will sue the administration to protect Americans and their liberties."

NEXT: No, Biden, This Is About Freedom and Personal Choice

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  1. Do other people wonder if the number of "executive orders" spawned regulations are causing people to forget that laws are supposed to come from the legislature?

    I mean, March 2020 is one thing, but it has been 18 months. Where I live there's a D supermajority and a D governor. Biden has both houses of congress. Shouldn't lawmakers be the ones making laws?

    1. If it's a D supermajority and a D executive, it's faster for the executive to merely declare something as law, and the D legislators to merely say, "Yeah, what he said."

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      2. But the fooferah is there for a pretty good reason.

        My thinking is just so 20th century, I guess.

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    2. Laws come from the legislature, but so does war. Congress is supposed to be in charge of war, full stop. They have abdicated that responsibility in near totality. Every abdication of lawmaking is merely them catching up on domestic policy.

      1. It's even more than that. Every time Congress cedes more power to the executive it's an end-around to the amendment process and it takes power away from the states and the people. It's a breach of contract in favor of the federal government.

        It's supposed to be hard to make and pass laws. That's a feature, not a bug. Just like it's supposed to be even harder to change the balance of power through amendments.

        1. That's why the 17th was so dangerous. Now we have nobody looking out for state power and naturally it's all flowing to DC.

          1. You'd almost think that was the exact intent of the Progressive Era racist eugenicist totalitarian pieces of shit who proposed it.

    3. Congress is too busy investigating Reichstag fire extinguishers. They've ceded all dictatorial to the, you know, the thing.

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  2. It's going to be fun to watch Roberts' signature 11th hour switch to the liberal side of the court just so he can write the ruling.

    1. There might be controversy so he'll refuse to hear it. Claim that it lacks standing.

      1. There's a lot of things GWB deserves a kick in the dick for, and Roberts is near the top.

  3. Fuck Joe Biden

    1. Fuck Joe Biden

      1. Fuck Mojo Joe Joe Biden.

        I love this game!

  4. I am pro-vaccine and anti-mandate.

    Pro-"preparation that is used to stimulate the body’s immune response against diseases."

      1. I heard it was made mostly out of snake oil and piss.
        Or was it piss with ink?

  5. Anybody who's dealt with OSHA knows not to be too afraid, but it costs a shit ton of money for corporations to have HSE organizations to cope with the regulatory bullshit and they would rather knuckle under.

    That Biden's rule is illegal is of course going to be tested in court, Biden will lose, but if covid cases drop anyway he'll claim victory.

  6. " THIS ISN'T ABOUT FREEDOM. THIS ISN'T ABOUT PERSONAL CHOICE!"
    Job Biden 9/9/2021

  7. A vaccine that's so good you have to force people to take it.

    1. Again and again and again…

    2. It’s not the vaccines fault that people aren’t getting vaccinated for dumb, partisan reasons.

      1. Two weeks to flatten the curve. If you need the vaccine, go for it. If you need endless boosters, go for them too.

        1. The vaccines are super effective with ZERO side effects. There’s no reason not to get them. Not even if you’ve already had Covid. If you don’t take the government ordered shot, what kind of libertarian are you?

          1. Zero side effects? What planet do you live on?

            1. Zero side effects? Even Stupid Mike had to spit coffee on his screen while he typed that.

    3. What I went through to get vaccinated: I got intel from another church member who works in a pharmacy when they were getting vaccine doses in, made an appointment, and left the house so early that I would have gotten there even after a flat tire. I don't feel forced.
      It's a vaccine so good that it produced these results:
      https://www.nejm.org/doi/full/10.1056/nejmoa2035389

  8. If you think Biden's emergency powers are being stretched now, just wait until you see the emergency powers he's got planned for the midterm elections next year. Oh, hey! Would you look at that!

    1. This is why I have to laugh at conservatives who say "Just you wait until the next election, Joe!"
      There is no next election. The house bill makes that clear, the executive order you linked to makes that clear, the narrative being pushed by the establishment's media makes that clear, Agenda 2030 makes that clear. Western democracy is finished... past tense. It's already gone.

  9. The Biden Administration's 'Emergency' Vaccine Mandate May Be Vulnerable to Legal Challenges

    Also, the sun may rise in the east tomorrow.
    I read it on the internet.

  10. How does the Republican National Committee surmise that it has standing to sue?

    1. Probably because they are an employer with more than 100 employees you colossally fucking stupid legally illiterate sack of shit.

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