Don't Believe OSHA When It Threatens To Turn Its Rescinded Vaccine Mandate Into a Permanent Rule

That process takes a long time, and the result would face the same legal objection cited by the Supreme Court.

Today the Occupational Safety and Health Administration (OSHA) officially withdrew its "emergency" vaccinate-or-test mandate for private employers, acknowledging that the Supreme Court's January 13 stay blocking the rule's enforcement means it has no realistic chance of surviving judicial review. At the same time, OSHA said it may yet seek to impose a similar mandate through the usual rule-making process.

That is quite unlikely to happen, both because of the time that process requires and because of the Supreme Court's reasoning in granting the stay. Given these realities, any talk of turning the rescinded "emergency temporary standard" (ETS) into a permanent rule should be viewed as little more than a bureaucratic face-saving gesture.

OSHA's rule, which it published on November 5, demanded that companies with 100 or more employees require them to be vaccinated against COVID-19 or wear face masks and submit to weekly virus testing. Because the agency presented that edict as an ETS, it avoided the usual rule-making process, but it had to show that its regulations were "necessary" to protect employees from a "grave danger" in the workplace.

"Although OSHA is withdrawing the Vaccination and Testing ETS as an enforceable emergency temporary standard," the agency says in its Federal Register notice, "OSHA is not withdrawing the ETS to the extent that it serves as a proposed rule under section 6(c)(3) of the [Occupational Safety and Health] Act, and this action does not affect the ETS's status as a proposal under section 6(b) of the Act or otherwise affect the status of the notice-and-comment rulemaking commenced by the Vaccination and Testing ETS."

OSHA is referring to the dual functions of an ETS: The regulations take effect immediately and last for six months, but they also serve as a proposed rule that is supposed to be finalized by the end of that period. That statutory timetable seems utterly unrealistic, however, given how long it typically takes for OSHA to issue an ordinary standard, a process that requires not only advance notice but also opportunities for public comment and hearings.

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 Congressional Research Service noted in a 2021 report, "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)."

Even if OSHA spent a few years developing a standard based on its rescinded ETS, the resulting regulations could (and inevitably would) still be challenged in court. The Supreme Court's rationale for blocking the ETS suggests a permanent standard would fare no better at that point.

Much of the litigation against the ETS focused on the distinction between an emergency standard, which must be "necessary" to address a "grave danger," and an ordinary rule, which need only be "reasonably necessary or appropriate" to address a "significant risk." That distinction came up again when the Supreme Court heard arguments for and against a stay on January 7. But when the Court issued the stay six days later, it focused on a different point: the distinction "between occupational risk and risk more generally."

The majority granted that OSHA has the authority to address the danger posed by COVID-19 when "the virus poses a special danger because of the particular features of an employee's job or workplace," as in laboratories that handle the virus or in "particularly crowded or cramped environments." But it said OSHA was obliged to take account of those "particular features" rather than targeting virus transmission in every indoor workplace with a rule that covered 84 million employees.

"Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most," the Court said. "OSHA's indiscriminate approach fails to account for this crucial distinction—between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an 'occupational safety or health standard.'"

Since general public health measures are beyond OSHA's legal purview, the majority concluded, the businesses, employees, and states that challenged the ETS were likely to prevail in arguing that the agency had exceeded its statutory authority. Under the same reasoning, that would also be true of a permanent standard that resembled the ETS in its breadth and justification.

"The Biden Administration is not giving up," the New Civil Liberties Alliance, one of the organizations that opposed the vaccine mandate, warns in a press release. "Instead, it says that it will focus its resources on promulgating a permanent rule rather than the ETS." Good luck with that.