Vaccines

A Backgrounder on the Proposed OSHA Vaccination Mandate and Likely Legal Challenges (Updated)

Why legal challenges to the new rule are more likely to focus on the details than on broad challenges to OSHA's authority.

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President Biden's announcement that the Occupational Safety and Health Administration (OSHA) will require large employers to mandate the vaccination or testing of their employees has already prompted a raft of commentary and controversy. The standard, once issued, is sure to invite legal challenges, the most serious of which will likely focus on the yet-to-be-disclosed particulars of the rule. This post is intended to provide some background on OSHA's authority and identify the legal issues the rule is likely to create. (As will become clear, I see some of the issues differently from some of my co-bloggers.)

A quick note: My employer requires vaccination (in addition to periodic testing) and I support that. I wish more people were vaccinated and that more employers required it of their employees. I also believe that the control of infectious disease is one of the more important functions of government. This post is not about those questions, however, but about OSHA's authority to adopt the standard the White House has announced.

The White House announcement describes the new policy as follows:

The Department of Labor's Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.

The same proposed standard will also require employers "to provide paid time off for the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination."

We do not have the details of the OSHA rule—and the details will matter.  Nonetheless, it is possible to identify the legal issues that this new OSHA standard will (and will not) raise.

For starters, it is important to recognize that this proposed standard represents a far more traditional use of agency authority than did the CDC's eviction moratorium. While this is unquestionably an aggressive use of OSHA authority, it does not represent a dramatic departure from the sorts of things OSHA has done over the past fifty years, and does not raise quite the same specter of an agency without unlimited authority that the CDC moratoria did. This doesn't mean the standard should or will survive legal challenge, but it does indicate the issues are somewhat different.

Under the Occupational Safety and Health Act of 1970, OSHA has broad authority to set workplace safety standards ("occupational safety and health standards"), including standards aimed at reducing the threat of disease. Section 3(8) of the OSHAct provides:

The term "occupational safety and health standard" means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.

A few things are important here. First, the authority here is quite broad, reaching just about  anything that could pose a health or safety risk in the workplace. OSHA standards are not just about exposures to chemicals, but cover all manner of potential workplace threats. Second, any standards set under the statute must be "reasonably necessary or appropriate." Third, as interpreted by the Supreme Court, this language (in conjunction with the provisions of Section 6) requires that OSHA conclude that the danger to be regulated poses a "significant risk" to employees.

The specifics of how and when OSHA may adopt standards under the OSHAct are provided in Section 6. The authority here is also broad for the adoption of permanent standards, which must go through the normal rulemaking process. That's a long and arduous process, which is why OSHA is relying upon special authority to adopt an "emergency temporary standard" (ETS) without going through notice-and-comment first, as it did earlier this year to set a new COVID standard for health care workers. (Of note, labor groups have sued OSHA over this ETS arguing that it is not stringent enough.)

Under Section 6(c), OSHA may bypass notice-and-comment to adopt an ETS upon making two findings:

(A) 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

(B) that such emergency standard is necessary to protect employees from such danger.

This authority has been rarely used, and has been carefully scrutinized by the courts (as discussed in this CRS report).

Both Section 3(8) and 6(c) present potential challenges to the Biden Administration's plans, but not necessarily the challenges you have read about.

First, contrary to my co-blogger Ilya, I do not believe that it matters that the ETS is focused on a virus instead of a chemical or toxin. Section 6(c) allows OSHA to set an ETS when a grave danger is posed by "agents," among other things, and OSHA has long regulated "biological agents," including viruses. OSHA has standards and guidances that apply to exposures to various biological agents in laboratories and years ago adopted bloodborne pathogen standards that focus on controlling workplace exposure to Hepatitis B (including by requiring employers to make vaccination available at no cost to the employee). And even if a contagious disease were not considered a biological "agent," a newly emergent disease or disease variant could well be a "new danger."

Where OSHA will have to be careful in drafting and defending the ETS is in substantiating that COVID-19 (or newly emergent variants of it) pose a "grave danger" in the workplace, and that the ETS is "necessary" to limit that danger. Note that each of these requirements is more stringent than what is required for a generic standard under Section 3(8). There must be a "grave danger," not merely a significant risk, and the standard must be "necessary," as opposed to merely "reasonably necessary or appropriate." In other words, OSHA must clear a higher hurdle than is required for a regular workplace standard of the act.

One challenge for OSHA may be in demonstrating that the continuing spread of COVID-19 poses a grave threat to employees in covered workplaces. For starters, OSHA will likely have to focus on unvaccinated workers, because it would be hard to argue that COVID poses a "grave danger" to vaccinated employees. I expect it will also argue that the presence of unvaccinated employees is the source of that grave danger. (Note, however, that the risk to workers comes from their own behavior or from other workers is not a problem, as that's often the case with risks controlled by OSHA rules.)

While the White House is focused on the broader spread of COVID, and overall vaccination rates, these cannot be OSHA's focus. Nor can OSHA adopt an overbroad rule, roping in all large employers when the relevant risks are concentrated in a subset of firms. That there are some workplaces (say, a meat-packing plant) where there is a serious risk of spread, particularly if employees are unvaccinated, may justify an ETS that applies to those workplaces. It cannot justify an ETS applied to all workplaces generally. This is why I raised an eyebrow at the White House's focus on the number of employees in a firm (as opposed to the number of employees at a given workplace). If the eventual ETS is similarly broad, it could have a problem.

Not only must the ETS focus on a grave danger to employees at the workplace, it must also be "necessary" to reduce that risk. Here, too, I could see OSHA having some problems. As described by the White House, the ETS will require employers to mandate vaccination or conduct testing. But what if employees work remotely? What if they are not coming into contact with other, potentially unvaccinated, employees? Can it really be said that a workplace vaccinate-or-test requirement is "necessary" to control the risk of workplace spread to people who are not in the workplace? If the Administration wants to survive court challenge, it will likely have to consider this sort of alternative. And what about those who claim natural immunity from prior infection? OSHA will also have to address why applying this ETS to such employees is "necessary" to protect employees. I am not sure OSHA will have to address broader arguments against compulsory vaccination, however, as the plan is to include alternative means of compliance (e.g. periodic testing).

These sorts of questions (and more) are often addressed by agencies during the notice-and-comment process. Yet because OSHA is planning to adopt an ETS, there will be no such comment period until after the standard is in place. This means OSHA's lawyers have to flyspeck the ETS before it is issued, though they will have the opportunity to tweak the rule before it become permanent. Under Section 6(c), OSHA has six months to consider comments and develop a permanent standard to replace an ETS (but it is unclear whether the six month period may be extended, which could matter because six months would be lightning fast for a controversial notice-and-comment rulemaking).

Once the ETS is issued, it will certainly be challenged (as Josh has discussed). Even though some employers will welcome the standard so they can push their employees to get vaccinated while blaming the government, other employers (and employees) will raise concerns. (State governments, however, will not have standing to challenge the ETS as employers because the OSHAct's definition of covered employers does not cover "any State or political subdivision of a State.")

Some challenges will focus on the questions I've just outlined, but the particulars will have to wait until we see the actual rule. No doubt some others will challenge OSHA's authority to adopt such a rule at all, perhaps claiming that the OSHAct violates the nondelegation doctrine.

The OSHAct's broad language certainly raises nondelegation concerns. This concerned the Supreme Court in International Union v. API (the "Benzene case") and is the subject of this paper by Cass Sunstein. And were the OSHAct being challenged on a clean slate, it would not surprised me if several justices were willing to strike the statute down on such grounds, but a clean slate we do not have.

The Supreme Court considered and rejected the nondelegation argument against the OSHAct in the Benzene case. There the Court (re)interpreted the statute's language so as to constrain OSHA's discretion and thereby eliminate the nondelegation concern. This is important because, under principles of stare decisis, this prior interpretation of the OSHAct holds. So insofar as the Court interpreted the OSHAct to provide less open-ended discretion than the statutory text might suggest, statutory stare decisis would counsel the current Court to follow suit. Thus it would be a heavier lift to reject OSHA's standard-setting authority on nondelegation grounds.

UPDATE: Some have asked how this mandate differs from the CDC eviction moratorium, which was (properly, in my view) rejected by the Supreme Court. So here's a quick update on why I think the two measures present quite different legal questions.

First, and most importantly, the OSHAct provides clear authority to reduce workplace risks, where as the CDC statute gives no indication that it could be used to regulate landlord-tenant relationships. Among other things, this made the eviction moratorium particularly vulnerable to "major questions" objections, and gave force to the challenge that "if the CDC can do this, what can't it do?"

Second, OSHA has long-standing regulatory authority over workplace conditions, whereas the CDC was wading into new territory in seeking to regulate evictions. So blocking the CDC did not blunt the CDC's longstanding authority, whereas categorically rejecting OSHA's authority to address COVID in the workplace could undermine other OSHA measures.

Third, a properly drafted ETS will focus on COVID risks in the workplace, specifically the risks posed by and to unvaccinated workers who are in contact with other unvaccinated workers, and will be tailored to address those risks.  The eviction moratorium's relationship to the interstate spread of COVID, on the other hand, was quite attenuated, even in round two.

Fourth, under existing precedent, the federal government has broad authority to regulate the terms and conditions of employment as necessary and proper to the regulation of commerce among the states. Thus any challenge the OSHAct on Commerce Clause grounds would necessarily implicate a broader swath of federal authority. This was not necessarily the case with the eviction moratorium, as the Supreme Court has repeatedly said that the commerce power should be construed so as not to displace traditional state functions, and there is a colorable argument that landlord-tenant law (like land-use regulation generally) is a traditional state function with which the federal government cannot interfere (at least not without a clear statement from Congress to that effect).

The bottom line here is that a properly drafted OSHA ETS covering COVID exposure in the workplace should be significantly less vulnerable to legal challenge than the CDC's eviction moratorium.

NEXT: Memories of 9/11 and its Aftermath

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  1. OSHA is unconstitutional. its a States responsibility for work safety. Time to shout down any Federal Agency created after 1932..CIA would be a good start.

    1. Pursuant Blackman’s CA v TX rationale if this mandate is unconstitutional then everything the federal government has ever done is unconstitutional even if it has been deemed constitutional before EXCEPT the 2A which unlike the other amendments in the BoR grants rights specifically to the people and it was never just a limit on the federal government.

      1. You keep saying stupid things like that. It’s like you don’t even care if people notice you’re spouting stupid things.

      2. “…EXCEPT the 2A which unlike the other amendments in the BoR grants rights specifically to the people…”

        What amazing nonsense. It does no such thing. It’s hard to believe you’ve never even read it’s text, but I would have to believe that in order not to think that you are just lying. It -mentions- a pre-existing, presumably “natural” right and thereby recognizes it, but was a guarantee of nothing prior to the 14A (and arguably not properly even then).

        1. * its

          Also, insert a comma after “natural”.

          It would be nice if you could revise and extend. Notifying people who have already responded and making any edits visible for examination would solve the retcon problem. I remember bulletin board software that did this (and Wikipedia has the capability in a different way) but comment software has for some reason gotten worse in this way.

    2. Show the Constitutional and case based source of that statement.

  2. Some actual lawyering. This will not go over well here.

    1. Three lawyers, each approaching it differently. Each concluding the presumptive regulation will have a rough road ahead.

      You must be having a hard time right now.

      1. Where does Prof. Adler — the adult in this saga — depict a “rough road ahead?”

        Me? I’m fine. Still on the winning side of the culture war, watching my preferences be vindicated by American progress. Still watching conservatives brand themselves — particularly among younger, educated Americans developing their lifelong voting patterns — as superstitious bigots, lethally reckless boors, misogynistic losers, and disaffected misfits.

        How are things on the clinger side of the American divide — the side that prefers bigotry to tolerance, ignorance to education, superstition to reason, childish dogma to science, insularity and backwardness to progress and modernity, white nationalism to inclusiveness?

        How is modern America treating the side that prefers can’t-keep-up backwaters to modern, successful communities and continues to be painted into increasingly limited, desolate corners of America; prefers backwater religious schooling and downscale homeschooling to our strongest teaching and research institutions; and prefers separatist and fringe groups to mainstream entertainment, journalism, and cultural institutions?

        1. How did I neglect muting Rev. Arthur L. Kirkland? Oh, well. The problem is now solved.

          1. Be careful . . . Prof. Volokh has said he dislikes vulgar puns. He even censors them.

            Sometimes.

            Just sometimes. Right, Prof. Volokh?

            1. So lining up for Vietnamese soup is vulgar, you bigoted clinger? If you come to America you should eat Campbell’s Beef Barley, is that it?

        2. “Still on the winning side of the culture war, watching my preferences be vindicated by American progress.”

          You must have been so happy when that dude from the special forces beat up that woman in the MMA fight.

        3. If you want to see a boor, look in a mirror.

          Notice that when you drool he does too. Wonder what that means?

      2. Josh is not a lawyer. He is a glorified law student. He has never had to grapple with the risk of providing a client bad legal advice, and it shows in his cavalier and reckless approach to legal analysis.

        Jonathan and Ilya at least know what they’re talking about.

        1. You are conflating the diffidence a lawyer might fell about an honest analysis that will not go over well with a particular judge or set of judges with honest analysis itself. By your account Blackman is better positioned to offer the latter.

    2. Artie struggles to understand his bigotry. We’ll try to help.

  3. Consider yourself successfully distracted from the ongoing Afghanistan debacle.

    1. Less ongoing than it was, thank goodness.

      1. Less is more to the bigoted Artie.

        1. I am not tired of winning yet. Are you clingnuts tiring of losing?

    2. Well pissing me off even more is hardly a great strategy for making me forget Afghanistan.

      But on another topic, what’s with all the ‘Fuck Joe Biden’ chants at college football games?

      Maybe only a half dozen every Saturday, but is it Afghanistan related, vaccine related, or are they pissed off the infrastructure reconciliation hasn’t passed yet?

      I wonder if we are going to hear any chants at NFL games tomorrow? But the networks are probably prepared to keep it off the air.

      1. Kazinski : what’s with all the ‘Fuck Joe Biden’ chants at college football games?

        Dunno, but this much is clear : Biden had the most brutal August imaginable, mainly from taking the final step of Trump’s Afghan treaty. Not surprisingly, his poll numbers suffered as a result – and dropped to the same level Trump saw throughout his entire presidency, from first day to last.

        Whatya wanna guess Joe’s numbers go back up?

        1. trump also got 100% non stop negative press

          Biden on the other hand has been running interference.

          1. Trump received fawning adoration from right-wing media.

            The mainstream press — educated, reality-based, modern, non-bigoted — was less kind.

        2. “Trump’s Afghan treaty”?
          The one that ended in May? Why would Biden have a bad August from something that Trump scheduled for May?

    3. And now focused on the ongoing Covid one.

      1. But Biden didn’t cause Covid. And the vax fighting gives leftists what they crave the most: an opportunity to complain about, point fingers at, and bully Americans.

        1. Well, that’s one way to see it . Another is this: Three studies published Friday by the CDC show the unvaccinated are 5X more likely to catch the delta variant and 11X more likely to die. Leftists and sensible people (the two groups mostly overlap) would like to put the pandemic behind us. Achieving the highest rates of vaccination is our best tool available.

          Here’s a hint, Ben: Upset over adult responsible people complaining about you? Stop acting like a brat child and the problem goes away. Worried someone will point a finger at your irrational antics? Act with simple common sense and the issue doesn’t exist. Afraid you’re going to be bullied? Don’t treat a national pandemic as an excuse for a two-year-old grade blue-faced tantrum.

          That ain’t very hard, is it?

          https://arstechnica.com/science/2021/09/unvaccinated-are-5x-more-likely-to-catch-delta-11x-more-likely-to-die/

          1. ‘Sensible’ Democrats who believe in forcing people who already have had covid to get vaxxed but not illegals at he border. Pro vacciners who are so insecure about the vaccine they believe that the vaccine isn’t effective enough and that we should also be trampling all over the constitution and personal liberties and setting the stage for even more power grabs in the future.

            1. Nobody is being forced to accept vaccination. Boorish, antisocial jerks are being expected to sustain the legitimate consequences of poor judgment and bad choices, however, as is appropriate.

              Accountability is good.

            2. “Democrats who believe in forcing people … but not illegals at he border”

              It’s only Americans they have a fight with.

          2. Lol. Headline says more. Article says less. Quality editorialship over at Ars.

          3. GRB
            That same study shows the following for infection fatality rates (april -july 2021)
            Vaccinated
            all ages – 1.821%
            over 65 – 4.9678%
            under age 40 – 0.0677%
            Unvaccinated
            all ages 0.433%
            over 65 – 2.999%
            under age 40 – 0.089%

          4. Quoting myself: “the vax fighting gives leftists what they crave the most: an opportunity to complain about, point fingers at, and bully Americans”

            Thanks for being an example. You clearly love scolding and bullying Americans.

            Americans stand up to bullies and don’t let hostage-takers win. So all your bullshit is counterproductive to the goal you claim to have.

            No problem for you though. Spite is satisfied. You got to be mean to someone — mission accomplished. Today’s a new day for you to be even nastier to even more people though.

            1. I guess we’re both happy, because you got to be whiny, butthurt and childish…

              1. ^ Note how bigoted and intentionally mean and nasty leftists are.

                Whenever they want to make a complaint about anything anyone else says, remember this is who they actually are. They say “tolerance”, but they don’t actually mean it. They might say they only want [whomever] treated well, but this is how they treat people who are not like them.

                It’s a really helpful example. Thanks grb!

          5. I don’t usually respond to idiots (“Leftists and sensible people (the two groups mostly overlap)…”) but I have a question for you. If the goal is to get the most people vaccinated and the vaccine is effective, then why not incentivize getting vaccinated by not requiring people who are vaccinated to wear masks? And if masks are effective and they are going to be mandated why do we need to get vaccinated?
            Disclosure: I was vaccinated as soon as I was able. But it was my choice. It shouldn’t be forced on anyone.

            1. We tried that. It didn’t work. The reason vaccinated people have to wear masks is because unvaccinated people didn’t comply with the rule – they also stopped wearing masks. Public health policy has to consider both biology and behavior. You can’t ignore the behavioral component. It’s annoying, for sure, that responsible people need to suffer unnecessary/blanket restrictions because of irresponsible people, but it’s not remotely unusual (eg, the drinking age).

              As for why we need vaccines when we have masks, that’s because protection isn’t binary. Masks do provide a reduction in transmission, but vaccines do a better job. We want everyone vaccinated so that we can stop using the more annoying, and less effective, methods like masks, lockdowns, capacity limits, travel restrictions, etc. There’s also some concerns about transmission to children because of breakthrough infections, because the vaccines not yet being approved for children 5-11. That’s an important, but I think secondary, concern w.r.t. mask mandates.

              1. Vaccinated people “have to” wear masks because the government jerks who like to bully everyone are bad at math, don’t understand probabilities, and make rules gratuitously, just for the sake of rules.

                They love forcing masks on people especially when they know it does the least good. Because making everyone’s life worse for absolutely no reason is when they feel the most powerful.

              2. NoOne comment – “There’s also some concerns about transmission to children because of breakthrough infections, because the vaccines not yet being approved for children 5-11. ”

                Live covid infections work remarkably well as a vaccine for the young, Much better in fact than the vaccines and with lower side effects. Better long term immunity, rare side effects, etc.

                Really should be taking advantage of that instead of actively taking steps to retard / suppress the development of the young’s immune system. Instead, everyone is running scared because of paranioa.

                1. > Live covid infections work remarkably well as a vaccine for the young, Much better in fact than the vaccines and with lower side effects. Better long term immunity, rare side effects, etc.

                  We don’t have enough data to conclusively say whether vaccination or infection provides better and/or longer lasting immunity, especially not in children. I’m pretty certain the eventual answer will be that the comparative immunity is (a) variant dependent and (b) close enough that either is sufficient. A random person on the internet being “pretty certain” is a long ways away from regulatory decision though. But, we do know that vaccination has fewer side effects than infection. Multisystem inflammatory syndrome is really the only thing we are worried about for childhood vaccination. The risk of getting MIS is much higher from infection, plus infection comes with a host of other potential complications.

                  But, it doesn’t really matter. Even if there was zero risk to children from infection, we would still want to reduce the risk of transmission to adults by vaccinating children.

                  This isn’t novel. Rubella is a good example. It causes mild disease in children, but we vaccinate for it because it can cause miscarriages and birth defects if a pregnant woman becomes infected. Vaccination regimes aren’t only about protecting the vaccinated individual, but also the the community around them.

                  1. NoOne
                    September.12.2021 at 4:27 pm
                    Flag Comment Mute User

                    NoONe comment – “We don’t have enough data to conclusively say whether vaccination or infection provides better and/or longer lasting immunity, especially not in children. I’m pretty certain the eventual answer will be that the comparative immunity is (a) variant dependent and (b) close enough that either is sufficient.”

                    Yes we do have enough data – the Israeli study was pretty definitive.

                    1. How the hell is a study that hasn’t even been peer-reviewed yet “pretty definitive”?

                      Odds that Tfer has read the pre-print? Less than the Jets’ odds of winning the Super Bowl? Or much less than the Jets’ odds of winning the Super Bowl?

                    2. A single retrospective study, no matter how compelling, isn’t
                      conclusive evidence. The Israel study may very well be correct, but one such correct study on its own isn’t enough to make regulatory decision. Science is incremental and “proof” is based on the aggregate work in a field. This is because there are always caveats to a single study. In this case, that includes it being retrospective in nature, being restricted to only patients 16 and older, being restricted to a single geographic area, and being focused specifically on the delta variant.

                      This is not to say that the Israel study is in any way flawed. Just that it is addressing the very specific question of “among Israelis 16 and older does natural infection with the original variant confer more robust immunity to the delta variant than vaccination against the original variant”. Their answer is “yes” and that is not remotely surprising, because delta contains mutations in the spike RNA on which the vaccines are based. Maybe the answer is different in children under 16. Maybe the answer is different if you compare against the beta variant (which has greater immune evasion) or original strain. Maybe the answer is different in a country/population that is less healthy overall compared to Israelis (like Americans). Impossible to say without more data.

                      I think it’s still missing the forrest for the trees though. The comparative immunity between infection and vaccination is a quibble. Scientifically, a very interesting quibble, but one with no practical bearing on vaccination policy concerns.

              3. NoOne
                September.12.2021 at 3:13 pm
                Flag Comment Mute User
                “We tried that. It didn’t work. The reason vaccinated people have to wear masks is because unvaccinated people didn’t comply with the rule – they also stopped wearing masks.”

                Vaccinated people have to continue to wear masks because they are paraniod, and because the dont have a basic grasp of risk of transmission and risk of infection after vaccination.

            2. They’d rather have people to scold and bully than for people to get vaccinated.

              1. You assume because you’re pissed off it must be the main intent of whatever pissed you off.

                Except you appear to be eternally pissed off at the actions and words everything anyone who isn’t in the small set of people you call conservatives.

                Which allows you to assume their motives, which piss you off more.

  4. If the situation were as you explained it, wouldn’t the same rules logically apply to the entire Federal, State and local workforces?

    if it is a bio-hazard issue, why does covid avoid firms with 99 employees?

    Doesn’t that demarkation make it a political decision not a safety decision?

    Why is the USPS, whose employees randomly interact with millions, exempt?

    1. Yeah, this was basically my question. What other OSHA rules are dependant on the size of the company? Safety glasses and steel toes certainly aren’t.

      1. A lot of reporting requirements are dependent upon company size.

        1. reporting requirements yes, having a safe working is not optional. Your people still need safety shoes, shatterproof eye shields and step ladders with 45 stickers on them.

          1. Can we get a 46th sticker? Someone might forget about gravity if there are only 45.

        2. Safety is not dependent on the size of the employee workplace.
          The exemption implies that the mandate is either political or that the effectiveness of the universal vaccination will not be as effective as advertised.

          the proposal also doesnt exempt previously infected individuals. Based on what we now know, live covid infections provide much greater immunity than the vaccine. Again the lack of exemption implies they know the vaccine mandate will not be as effective as advertised.

          In somewhat similar vain, the mask mandate exempted children under various ages. That exemption implied that the pro mask advocates knew the masks were not as effective as promoted.

          1. The exemption implies that the mandate is either political

            I reiterate from a thread the other day where someone said this: what the fuck does that even mean? How does an exemption mean “it’s political”? What is it political about? How would it be less “political” if it applied to smaller businesses?

            or that the effectiveness of the universal vaccination will not be as effective as advertised.

            How does it “imply” that? What’s the underwear gnome logic here?

            Based on what we now know, live covid infections provide much greater immunity than the vaccine.

            False.

            Again the lack of exemption implies they know the vaccine mandate will not be as effective as advertised.

            Again, there’s not even the pretense of logic in that claim?

            In somewhat similar vain, the mask mandate exempted children under various ages. That exemption implied that the pro mask advocates knew the masks were not as effective as promoted.

            (1) vein, not vain. Vain means conceited.
            (2) No, again, that’s not what the exemption “implies.” It means that very small children can’t wear masks.

            1. David nieportent comment in response to my comment – “Based on what we now know, live covid infections provide much greater immunity than the vaccine.

              False.”

              David look up the Israeli study which shows significantly better immunity with a prior covid infection vs the vaccine. Also note the kentucky study showing otherwise has numerous flaws.

              A good piece of acedotal evidence is the Texas nursing home that had a covid outbreak among their previously vaccinated patients, but no reinfections with patients who previously had covid.

              Another piece of acedotal evidence is that I personally know 4 individuals who had the vaccine who later caught the real covid.

              At this point it is well documented that infections with the real covid provide significantly better immunity.

              1. David look up the Israeli study which shows significantly better immunity with a prior covid infection vs the vaccine.

                “One study showed X” does not equate to “We know that X is true,” especially when the study hasn’t even been peer-reviewed yet. And handwaving away counter-studies with “well, those have unspecified flaws” remains just handwaving.

                A good piece of acedotal evidence

                has now replaced the classic phrase “jumbo shrimp” as the go to example for “oxymoron.”

            2. David Nieporent
              September.11.2021 at 11:19 pm
              Flag Comment Mute User
              The exemption implies that the mandate is either political

              “I reiterate from a thread the other day where someone said this: what the fuck does that even mean? How does an exemption mean “it’s political”? What is it political about? How would it be less “political” if it applied to smaller businesses?”

              An exemption that is not based an assessment of the risk/safety concerns is inherently political

    2. If the situation were as you explained it, wouldn’t the same rules logically apply to the entire Federal, State and local workforces?

      Why is the USPS, whose employees randomly interact with millions, exempt?

      OSHA doesn’t apply to federal, state, or government workers, except the postal service. What makes you think that the rule doesn’t cover them?

      Doesn’t that demarkation make it a political decision not a safety decision

      Which means what?

    3. The USPS is exempt from the OSHA Act of 1970.

      Also, how does a 99% survival rate represent a grave danger?

      1. Also, how does a 99% survival rate represent a grave danger?

        Even if your numbers were accurate, why is it that the anti-vax, anti-mask, pro-disease loons fail to understand that catching a serious illness is a very bad thing, even if one survives?

        1. David Nieporent : anti-vax, anti-mask, pro-disease loons

          There was a tragic story last week about one of those people in Texas. He was part of an organization that fought every single pandemic measure (one of those groups whose name cheapens & debases the word Freedom).

          When he got sick his wife said he reused to go to the doctor because he didn’t want to add to the Covid statistics. That’s what “owning the libs” has become these days: refusing medical treatment. Instead he took vitamin C & horse de-wormer until final forced into the hospital. You see, he was too smart to be fooled by the massive documentation on vaccine efficiency & safety, but believed in animal de-wormer because of a few freak websites & tiny handful of inconclusive studies. He left a pregnant widow and three daughters.

          You wouldn’t think it possible for a political party & ideology to be pro-disease, but damn if that’s not what where we’re at…..

        2. Seriously, maybe you should actually drop by the CDC’s website. They estimate about 120M infections in the US to date. And about 675K deaths. Roughly half a percent.

          For working age people, a lot lower than that.

          1. CDC is currently reporting the IFR for the unvaccinated under age 40 (based on confirmed infections) to be 0.089%.

          2. Seriously, maybe you should actually drop by the CDC’s website. They estimate about 120M infections in the US to date. And about 675K deaths. Roughly half a percent.

            Come on, Brett. Cited by itself that’s a useless, deceptive, number. Care to tell us what it is among the unvaccinated?

            1. THAT would depend on whether you’re talking about the unvaccinated who haven’t had Covid, and the unvaccinated who have had Covid. But the CDC doesn’t like to distinguish.

      2. 1% of the US population is 3, 3 million people, That is a grave danger by any sane standard

        Using that made up 99% number indicates o=that you have been getting gas-lighted by your news source,matter how many times that lie is repeated it does not become fact
        Not to mention that Covid is known to cause damage to many of those that survive

        1. The true covid death rate is almost certainly nowhere near 1% otherwise there would we would obviously be swimming in dead bodies right about now. Why are you acting all superior when you’re apparently no less brainwashed by bad or misleading sources than the person you’re replying to?

      3. The USPS is exempt from the OSHA Act of 1970.

        No. The Occupational Safety and Health Act of 1970 exempted federal, state, and local employers from its coverage. But in 1998, the Postal Employees Safety Enhancement Act exempted the Postal Service from the exemption.

      4. Also, how does a 99% survival rate represent a grave danger?

        So if a virus appears that will kill 3 million Americans if we don’t act, it’s nothing to worry about.

    4. If the virus is as deadly we’re being led to believe why are we even opening the public schools back up? Why does covid magically not effect everything Dems like?

      1. Flailing, ignorant, disaffected goobers are among my favorite culture war casualties.

  5. COVID is not unique to the workplace. It seems to me OSHA is intended to protect against hazards specific to the occupation and/or workplace. It is not a vehicle for general health protection. Why not mandate other health issues, such as the flu, MMR, etc.? What about mandating no smoking?

    1. The Biden admin realized it could use various federal agencies to hammer their authoritarian causes. It’s not a coincidence that it takes time to wind through the courts. Biden usurped Congress and violated his oath of office. Congress is cool with it. Because Biden doesn’t know what’s going on anyway. The Top Men do though.

    2. sugary drinks, fatty foods, calorie intake…

  6. Nice explanation, Jonathan.

    Thanks.

    1. It’s my favorite kind of thing to read here.

      1. A once-a-month treat.

  7. I just wonder why the Post Office is exempt.

    Is it a union issue? If so why wouldn’t it affect other federal unions? Or is their some statutory issue?

    1. Go ahead, try to explain to your friendly mailman John Rambo that he has to get vaccinated.

      (ha ha, just a little Post Office humor there, don’t get mad)

    2. I just wonder why the Post Office is exempt.

      Exempt from what?

    3. Here’s a little very speculative theory – elections during covid are using significant, if not exclusive, mail-in ballots. Pissing off the postal service, particularly as your polling numbers are in decline, is unwise.

    4. The president’s authority to make rules for the civil service doesn’t extend to the USPS, and USPS employees’ collective-bargaining rights are much broader than those of other federal employees. Also the OSHA standard will presumably apply to the USPS.

  8. Well one thing is for sure. Personal injury lawyers can’t wait toe the federal government to declare covid a workplace hazard.

    Because when people get it, and they will, imagine the unsafe workplace lawsuits.

  9. The federal government does not have the power to force vaccines on people full stop. It does not matter how congress wrote the OSHA stature.

    While “legal challenges to the new rule are more likely to focus on the details than on broad challenges to OSHA’s authority” … what will invariably happen is 5 or 6 conservative justices will use the opportunity to pare OSHA’s authority.

    Worse, this administration is demonstrably incompetent (see CDC moratorium). They actually don’t care if the vaccine mandate is struck down, they just want to be seen doing something them rip the conservative court. So they will write the order in a way that will not survive scrutiny and parents OSHA’s authority for decades.

    1. and oh, I doubt “principles of stare decisis” matter to this court if they see a chance to pare OSHA. See also McGirt, where Gorsuch threw half of Oklahoma into chaos. Roberts may complain in his minority opinion about reliance interest, but no one will care.

  10. >Based on what we now know, live covid infections provide much greater immunity than the vaccine.

    Studies are contradictory on that. Israeli data found much better resistance from getting wild virus. A study from the US found twice as high a risk for people who’d had a natural infection versus vaccinated people.
    Citation: Cavanaugh AM, Spicer KB, Thoroughman D, Glick C, Winter K. Reduced Risk of Reinfection with SARS-CoV-2 After COVID-19 Vaccination — Kentucky, May–June 2021. MMWR Morb Mortal Wkly Rep 2021;70:1081-1083. DOI: http://dx.doi.org/10.15585/mmwr.mm7032e1external icon.

    1. Yes, we don’t have enough data yet to conclusively compare immunity provided by infection to that of vaccination. I don’t think that’s relevant to the OSHA regulations though, because the FDA hasn’t approved a test for immunity to SARS-CoV-2 infection yet. There’s a bunch of approved tests for antibodies against SARS-CoV-2, but they are specifically recommending against drawing conclusions about immunity from those tests:

      1. https://www.fda.gov/medical-devices/coronavirus-covid-19-and-medical-devices/antibody-serology-testing-covid-19-information-patients-and-consumers
      2. https://www.fda.gov/medical-devices/safety-communications/antibody-testing-not-currently-recommended-assess-immunity-after-covid-19-vaccination-fda-safety

      It may seem like the FDA is splitting hairs, but it’s not. There’s a big difference between “this test is okay to use” and “an antibody titer of X from approved test Y implies immunity for Z years”.

      I wouldn’t be surprised if the law is updated in the future to allow a positive antibody test to substitute for vaccination (as is done with some school/university immunization requirements), if we determine immunity is long lasting, and once a regulatory decision is made about how to test for immunity. We’re just not there yet.

      For now, this seems like a non-issue to me. The vaccines are free, very low risk, and have full regulatory approval, so there’s no harm requiring it for people that have been previously infected.

    2. The Kentucky study has numerous errors. you should be skeptical of the conclusion

    3. The dead are all immune.

  11. I tend to agree that the rule has a substantial area of application that will pass judicial review, although not necessarily universally. It will pass facial review, but there are areas of application where it may be overbroad.

    I agree a virus fits within the reasonable meaning of “agent” or “substance.”

    In addition, the OSHA rules do not have to be tailored 100% perfectly. There may be areas where they may not apply at all. But the fact that you can find an exception does not justify, and the courts will find that it does not justify, bringing down the entire rule.

    Challengers seem particularly adept at attempting to play games of “if it doesn’t work in one instance the entire thing doesn’t work.” But the law has never worked like statements of absolute logic. No law or legal scheme is ever “true” in the sense of always fitting every case perfectly.

  12. >it would be hard to argue that COVID poses a “grave danger” to vaccinated employees.
    I’m not a lawyer, but had always understood that it’s easy for them to argue things 🙂
    The dramatic risk reduction I got from my Moderna shots leaves a nonzero risk. It’s a risk of long-term disability. It’s a risk of death, which I thought had been reduced to something not worth paying attention to, but which according to the most recent figures is almost a tenth the fatality risk if I weren’t vaccinated.
    Is that “grave”, and who decides? Put numbers on it and they’re pretty low but compare them to what follows. There was a case where OSHA tried an ETS on something that was less deadly than COVID:
    “According to OSHA, the Reagan administration rule at issue in Asbestos Information Association was expected to save “eighty lives out of an estimated worker population of 375,399” during the six-month period that it would have been in effect”
    (https://www.vox.com/22666625/biden-vaccine-mandate-covid-19-supreme-court-osha-constitution-legal)
    “Gravity of danger is a policy decision committed to OSHA, not to the courts,” said a Fifth Circuit opinion on that ETS. The article that quoted it did not say whether the quote was dicta.
    So I think it would not be hard to argue, for a good arguer, either that the danger is grave or that it’s none of the court’s business to decide whether it is.

    1. from Vox:

      “But if the courts eventually strike down the Labor Department’s rule, it matters a great deal when they do so. If the rule is in effect for several months, even if the Supreme Court eventually decides to repeal it, many employers are likely to comply with it voluntarily — and millions of Americans could be vaccinated while the rule is in effect.”

      gamemanship… like the CDC moratorium. I doing the Biden admin can get away with this again.

      Also, 80 deaths of 375k workers. That standard gives OSHA unfettered power to regulate everything you put in your body including glucose (a chemical agent) and triglycerides.

      The unvaccined are only a danger to themselves. Nothing curbs agency power forever like attempted overreach.

      1. That standard gives OSHA unfettered power to regulate everything you put in your body including glucose (a chemical agent) and triglycerides.

        Not unless putting glucose in your body makes your workplace unsafe.

  13. I’m not a lawyer but I would like to offer a few challenges and see what lawyer or lawyer types have to say:

    1) OHSA has issued an ETS on COVID-19 already and stopped short of mandating the vaccine in the work force at large deciding to address just health care workers. While the transmission rate may have increased the case has not been made the biological agent itself has. If anything the efficacy of the vaccine itself has changed. In short if it wasn’t deadly enough a few months ago make the argument it is more deadly now.

    2) COVID 19 is also infecting and being transmitted by those who have been vaccinated, a trend that is sure to continue as mutations occur and vaccine protection wares off. Make the argument the COVID a vaccinated individual brings in to the workplace is less dangerous than that of unvaccinated worker or the unvaccinated minors they will bring it home to. Couldn’t an argument be made a robust testing program should be put in to place for ALL workers?

  14. Would love to see a psot on the legality of Biden’s promise to pay “school officials” all across the country if they are fired or lose money for defying mask mandate bans.

    1. It would certainly be illegal without a congressional appropriation, which will never happen, I would guess.

  15. “The bottom line here is that a properly drafted OSHA ETS covering COVID exposure in the workplace should be significantly less vulnerable to legal challenge than the CDC’s eviction moratorium.” But, what is the probability of the regulation being properly drafted and if the administration even cares about how it’s drafted? I perceive the mindset of the administration as ” This is what WE decided, go forth and comply.” Jawbone any court, attorney, media or individual who may bring up any drafting or legal questions/ deficiency.

    1. Disaffected, vanquished right-wingers are among my favorite culture war casualties.

      Carry on, clingers.

  16. I do want to question the use of the specifically emergency authority. Both Covid and the vaccines have been around for a while. Back when Trump was calling the immigration situation an emergency, I said that the fact that Congress prefers a different policy to addressing a chronic situation hardly creates an emergency.

    Here, the vaccine is more recent, but it has been around for months. And Congress’ reaction is considered. Opponents of vaccine mandates prefer personal liberty over saving lives. Even the question of how much evidence of safety and effectiveness you need to be convinced is one that, like a speed limit, has no definite boumdaries and on which rational people can differ.

    So why isn’t this situation like the border wall? Why shouldn’t the courts say that Congress’ decision not to act is a difference of policy, not an emergency? Why shouldn’t the courts say that if you tried to convince Congress there was an emergency and failed (or you had a chance to try and didn’t bother), you can’t then go back and try to convince us?

    Why shouldn’t emergencies, particularly in cases where the statute contemplates very short time frames, be limited to immediate situations where there is no time to go to Congress. The 6-month accelerated timeframe for notice and comment after the emergency providion is in place is perhaps an indication that first spending some time trying to convince Congress to act, and then when you’ve failed declaring an emergency, isn’t the procedure that the statute contemplated.

    What’s sauce for the goose has to be sauce for the gander. If the border wall wasn’t a real emergency, why is this?

    Belief that Trump was wrong and Biden right on policy clearly isn’t a satisfactory answer to the question why the two cases are different. It’s a real question.

  17. Note that each of these requirements is more stringent than what is required for a generic standard under Section 3(8). There must be a “grave danger,” not merely a significant risk, and the standard must be “necessary,” as opposed to merely “reasonably necessary or appropriate.”

    Col. Jessep: I felt his life might be in danger once word of the letter got out.
    Lt. Kaffee: Grave danger?
    Col. Jessep: Is there another kind?

  18. The vaccine is so safe pharmaceutical companies are shielded from liability if someone is harmed or killed by the vaccine. If we want to make the vaccine mandatory, shouldn’t we at at least compensate someone who harmed or their family if the person dies? I mean, if the vaccine is super duper safe, then it won’t run up a trillion more in debt to fairly pay people who are harmed, right?

    1. If we want to make the vaccine mandatory, shouldn’t we at at least compensate someone who harmed or their family if the person dies?

      Um, we do. It’s called the Countermeasures Injury Compensation Program.

      1. Privatized profits, socializes losses.

  19. idk why people think that lawsuits will focus on “details” rather than broad challenges. I just listened to the Nebraska governor. A broad challenge is coming. OSHA does not have a good track record with these ETS rules. Of the six times ETS rules were challenged, OSHA lost 5. OSHA will end up with its regulatory authority pruned for decades. Roberts is not the swing vote any more, Kavanaugh is. Kavanaugh got burned and played with the CDC moratorium. I dont see him giving the administration the benefit of the doubt here.

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