Vaccine mandates

OSHA Employer Vaccination Mandate is Narrower than Earlier White House Announcement - But Still has Legal Vulnerabilities [Updated with brief response to Jonathan Adler]

The rule just issued by OSHA has fewer legal flaws than the initial plan floated by the White House. But it's still problematic, and could set a dangerous precedent if upheld by courts.

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Earlier today, the Occupational Health and Safety Administration (OSHA) belatedly issued its Emergency Temporary Standard (ETS) requiring COVID-19 vaccination or testing combined with masking in private workplaces controlled by employers with 100 or more employees. As Jonathan Adler explains in his post on the new rule, it has a number of limitations that fix some of the potential legal vulnerabilities of the even broader policy envisioned by the initial White House statement on this policy. Among other things, employees who work remotely or outside are now exempt from the policy. There are also exemptions for employees with relevant disabilities and those with religious objections  that entitle them to "reasonable" accommodations under federal law.

Nonetheless, the mandate remains legally dubious. Jonathan Adler outlines some of the reasons why, and Reason's Jacob Sullum surveys some others.

Several of the points I made in my post on the initial White House announcement also still apply to the OSHA rule issued today, particularly the following:

The ETS provision allows OSHA to impose regulations without going through the normal "notice and comment" process, and other procedural requirements. For that reason…. courts have subjected previous ETS policies to nondeferential judicial review, and have often struck them down. ETS has only been used nine times before, and in five of those instances (of the six that got litigated at all), courts have struck down at least part of the resulting policy. None of the previous uses of ETS were anywhere near as sweeping as this one.

It's not hard to see how the present ETS may be vulnerable. A virus, like that at the root of the present pandemic, arguably doesn't qualify as a "substance or agent." These terms generally refer to chemicals, liquids or man-made dangers, not living things.

Perhaps it counts as a "new hazard." But it's not clear that, in this context, the term "hazard" includes all dangers of any kind, or is limited by the previously listed terms ("substances or agents").  Perhaps a "new hazard" is simply a dangerous substance or agent that is novel, as opposed to one that, as the statute puts it, has already been "determined to be toxic or physically harmful." In addition, 19 months into the pandemic, it's not easy to claim that Covid is a "new" hazard, at all….

Finally, does Covid really pose a "grave danger" to employees when the vast majority of them can easily minimize it by getting vaccinated voluntarily, thereby almost completely eliminating the risk of serious illness and death? If "grave danger" exists even in cases where it is easily avoidable, OSHA would have near-boundless authority to issue ETS regulations on almost any workplace practice.

Virtually any workplace activity poses grave dangers to at least some people, if none of the latter can be expected to take even minimal precautions on their own….

[I]f the administration prevails on this issue, it would set a dangerous precedent, and undermine the constitutional separation of powers. In order to uphold this ETS requirement, courts would have to rule that the statute authorizes OSHA to issue emergency regulations for dangers that 1) are not limited to chemical "substances or agents," 2) are not really all that "new" and 3) can easily be greatly mitigated by the people the agency seeks to protect.

In combination, these conclusions would allow OSHA to restrict or ban almost any workplace practice. And they could do it without having to go through the notice and comment process, or other procedural constraints that normally apply to major regulations.

As I indicated in my earlier post, I share much of the administration's frustration with anti-vaxxers, and I am far more sympathetic to vaccination mandates than to virtually any other pandemic-era regulations, such as lockdowns, migration restrictions, and mask mandates. Compared to these other policies, vaccine mandates are both far more effective in promoting public health, and far lesser restrictions on liberty.

But even a potentially beneficial policy should still be undertaken in ways that don't go beyond the limits of executive authority and threaten to set a dangerous precedent. Even if you trust the Biden administration with such enormous power, you should consider whether you will have equal confidence in the next president, who could well be a Republican (perhaps even the second coming of Donald Trump).

I honestly don't know which way courts will go on this issue. Perhaps they will be inclined to defer to OSHA's expertise, unwilling to interfere with a policy that seeks to address a major emergency. But it's also possible that the combination of the sweeping nature of the employer mandate and the use of ETS authority to circumvent normal notice and comment requirements will draw tough judicial scrutiny, as happened with several prior, less extreme, uses of the ETS power. It's also possible that OSHA will find creative ways to further narrow the rule, so as to make it less legally vulnerable.

Another possiblity is that, as the Delta wave recedes and Covid cases wane (assuming they continue to do so), OSHA will eventually withdraw the mandate or severely limit its scope before federal courts have the opportunity to fully consider the legal issues. While lawsuits challenging the ETS policy are likely to be filed very quickly, it could take many weeks to fully litigate them.

There may also be other possible resolutions to this issue, which don't occur to me right now. We shall have to see what happens.

In my earlier post, I noted that the Biden administration is likely on firmer footing in its efforts to impose vaccination requirements on federal employees, federal contractors, and employees of hospitals and other health care facilities receiving federal funding. Today's OSHA ETS doesn't cover these other cases, which are under the purview of different agencies.

UPDATE: Jonathan Adler criticizes some of the points made above in an update to his own earlier post about the OSHA ETS:

First, The OSH Act has long been interpreted to cover biological agents to which employees may be exposed in the workplace. The best example is OSHA's bloodborne pathogen rule

I also do not think it matters that employees may voluntarily take actions to protect themselves. OSHA has long adopted rules that, in effect, work to protect employees from their own carelessness or failure to take protections. See, for instance, the lockout/tagout rule, which aims to protect employees from energy and machine-related hazards during maintenance activities (i.e. the risk a machine might turn on while being cleaned or repaired).

I thank Jonathan for his thoughtful comment. But I remain unpersuaded. The previous rules he refers to were all adopted under OSHA's regular authority, not the emergency ETS authority. Because the latter can evade normal procedural constraints (such as the need to engage in the notice and comment process), it is subject to more stringent judicial review. Only the ETS authority is limited to protecting employees against "grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards" (emphasis added). By contrast, OSHA's regular authority includes a broader power to set "occupational safety or health standard[s]." Thus, the issues I raise do not apply to rules promulgated under OSHA's normal rule-making authority, but do apply to ETS standards. That by no means guarantees that courts will strike down the new vaccination rule. But it does mean that the precedents Jonathan cites aren't determinative.

In addition, there is a big difference between rules designed to forestall incidents of employee carelessness that require constant unflagging vigilance to avoid (such as accidentally turning on a machine when it might be dangerous to do so) and those that can be avoided through a discrete one-time (or two-time) act like getting vaccinated.  Some degree of occasional carelessness is much harder to prevent than the state of being unvaccinated. Giving OSHA the power to regulate even the latter is a much more sweeping expansion of the agency's authority than sticking to the former.

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  1. If "grave danger" exists even in cases where it is easily avoidable, OSHA would have near-boundless authority to issue ETS regulations on almost any workplace practice.

    Not in any universe where the rate of fatalities got consideration with regard to how grave the danger was. What more than 1000 deaths in the U.S. per day tells us is that the danger is not in practice easily avoidable, and that few if any dangers regulated by OSHA have been comparably dangerous.

    1. 15,000 deaths could have been avoided had DeSantis simply followed lead of Cooper in North Carolina. Is quality of life that much worse in NC because of the public health mitigation measures??

      1. Sebastian - a large number of the florida deaths were during the summer surge which is typical for those southern states for all flu pandemics (almost all of Florida is south of the 30th N parallel. Southern LA, southern MS, southern AL and Southern Tex had somewhat similar deaths rates as FL.

        You should have also noticed that the northern states are starting their winter surge (though it is a little early - usually starts closer to early/mid December) . While at this time, Fl case count is running approx 10%-20% of most every other state. Fl death rate is currently about the same as the US average and over the next 3 weeks will likely drop well below the national average.

        1. You can look at a graphs of deaths per day and FL’s high point is after vaccines were available and everyone knew masks mitigated spread. The same graph for NY would show the beginning was the high point and we didn’t have vaxxes or really under how to mitigate spread. I very seriously doubt NY will see a significant Delta surge because of a solid amount of vaxxed immunity and national immunity and super immunity.

    2. I don't understand your reasoning ... you are saying that serious COVID injury is *not* easily avoidable (by taking the vaccine), so OSHA is justified in mandating that everyone get vaccinate (and thus not avoiding COVID injury)?

    3. " few if any dangers regulated by OSHA have been comparably dangerous"
      Stephen, that comment is so incorrect that it is pitiful.
      You show that you know nothing about worker safety. I guess that al you can compare to is your 2-bit newspaper office.

  2. I know Americans are prone to stupid decisions because Americans voted for a failed president in 2004 because he protected the sanctity of marriage and because of John Kerry’s Vietnam War record…but the data is very clear now that the Delta variant has smoothed out the data and it is clear vaxxes work, masks work, and obviously lockdowns work!

    So take any logical grouping of states and if one of the states happened to have a Democrat governor that allowed public health officials to do their jobs and promoted the vaccines then that state has a significantly lower death rate than its neighbors. So in the SE North Carolina has the lowest death rate and among the 3 states in last place in everything (AL, MS, LA) Louisiana has the lowest death rate even though it was in the initial wave and it had 2 insane hurricane seasons and it was in the deep freeze. Bottom line—a governor like DeathSantis that bashed science and Fauci has 15,000 excess deaths on his hands compared to Cooper in NC…and NC hasn’t even done anything draconian in 2021!?! Was it really worth an extra 15,000 deaths in Florida and tens of thousands in other red states just to have petty tribal squabbles under the pretext of FREEDOM?? That’s more like FREEDUMB!

    1. Holy shit? Are you legitimately retarded?

      1. (please do not feed the trolls)

        1. Freedumb isn’t free—it takes idiots like DeathSantis rejecting science and killing residents of his state. FREEEEEEEEEEEEEDUMB!!

          1. It's pronounced "fweedum." And put a mask on before you comment. Sheesh!

      2. Do you think Cuomo’s nursing home order had an impact?

      3. " Holy shit? Are you legitimately retarded? "

        Questions such as this from the side of the aisle steeped in belligerent ignorance, childish superstition, and fourth-rate schools (we can set aside the multifaceted bigotry in this context) are always a treat.

        Carry on, anti-social, virus-flouting, disaffected -- and increasingly irrelevant -- clingers.

        1. You shouldn't talk about proggies that way, man of God.

    2. Anybody who washes away arguments with "clear" is not very good with the English language, since the very fact of arguments persisting so long shows the opposite.

      If you want to be taken seriously, rather than just signal some modicum of virtue, write seriously.

      1. How many nursing home patients did Cuomo kill?

        1. So many thousands that he had to resign after illegally covering up the real number.

          1. That’s not why he resigned and everyone can see the “real numbers”—every state ended up with a similar % of nursing home deaths because it is almost impossible to social distance in nursing home facilities.

            But not every state is having a Delta spike like Florida because some states are doing better promoting the vaccines and those states are also the states willing to institute mask mandates when necessary. So DeathSantis’ science/Fauci bashing has led to thousands of excess deaths compared to states with governors that didn’t do that like North Carolina.

    3. Sebastians' rant - "I know Americans are prone to stupid decisions because Americans voted for a failed president in 2004 because he protected the sanctity of marriage and because of John Kerry’s Vietnam War record…but the data is very clear now that the Delta variant has smoothed out the data and it is clear vaxxes work, masks work, and obviously lockdowns work!"

      The data shows vaxes are effective for approximate 6 months, then less than 50% effective after 6 months for individuals over age 60.

      If masks worked, then the delta in infection rates would be statistically different, however, the delta is quite small

      Hard lockdowns do work, if done early before the virus has spread into the community. However, once embetted into the community, lockdowns are worthless.

      1. Sure Joe. We could follow the Chinese example in Wuhan. Matial law with the Army on the streets.

  3. These terms generally refer to chemicals, liquids or man-made dangers, not living things.

    Biologists aren't in agreement that viruses are "living things" either, though I think many aren't very interested in the question since it is more about language than science.

  4. "If the administration prevails on this issue, it would set a dangerous precedent, and undermine the constitutional separation of powers."

    Which is the real agenda.

    1. Wow, you’ve got it all figured out! You are a hero like the patriots on 1/6!

      1. Point #2.

        The Vax is hazardous. That's a fact.

        In young healthy workers (esp. Males) with natural immunity, the Vax is more hazardous than the disease.

    2. I was going to say that myself. Blowing past limits on executive power and setting dangerous precedents is actually a goal here, not an unfortunate side effect.

      The administration is run by people who, seriously, do NOT believe in limited government. And if they can break the limits, they will.

    3. No, guys.

      The policies about the virus are actually about the virus, not some secret agenda to acclimate the populace to tyranny.

      FFS

  5. Been following your posts on OSHA overreach. Enjoy your thoughtful analysis.

  6. The average number of employees of the Fortune 500 is 52,000+. Targeting 100 employees is clearly designed to add regulatory stress on small business.

    If you're not a cynic in this dark age, you just haven't been paying attention.

  7. Compared to these other policies, vaccine mandates are both far more effective in promoting public health, and far lesser restrictions on liberty.

    It's hard to imagine that any professional could have beclowned itself more throughout the authoritarian nightmare of COVID than epidemiologists and the medical profession generally, and yet the professional faux libertarians give them a run for their money daily.

    1. "any professional could have beclowned itself more throughout the authoritarian nightmare of COVID than epidemiologists and the medical profession generally"
      Now that is arrogance on display.

  8. I believe the “agent or substance” argument is flawed. OSHA has regulations for:

    - Mechanical hazards
    - Chemical hazards
    - Biological hazards
    - Energy hazards (such as electricity)
    - Radiological hazards

    On biological hazards, bloodborne pathogens are considered hazards. OSHA also regulates use of respiratory protection. So if bloodborne pathogens are known to present hazards and OSHA also protects against respiratory hazards, it’s reasonable to infer OSHA can regulate exposure to an airborne pathogen.

    However, what is novel about this is that nowhere does OSHA require the injection of a potentially hazardous substance into the body of a person, no matter how low risk of the hazard might be. We know some people have been harmed by the vaccine. It’s rare and the FDA believes it’s acceptable. But OSHA doesn’t ever force workers to accept one hazard in order to avoid another.

    Section 5(a)(1) of the OSHAct states that employers must provide employees with a workplace free of known hazards. That’s technically impossible and courts should remove impossible laws. But it’s the current law. However, that doesn’t authorize OSHA to expose people to one hazard (one that’s potentially debilitating even if rare) to reduce exposure to another hazard. It doesn’t say free of known hazards except for this one that we force you to be exposed to.

    Further, OSHA has never regulated exposure to community spread diseases. It does regulate exposure to rare, workplace diseases but does not require vaccination (though vaccines must be offered for Hep B by the employer - they can be declined by the employee). But community spread diseases such as colds and flus are generally exempt.

    The off-ramp for OSHA on the required vaccine is testing. But, the testing faces a feasibility issue. What can employers do if a mass number of their employees refuse to be tested? Fire 60-70% of their workforce? What if they can’t get tests?

    And why hasn’t natural immunity been given equal billing as vaccinated immunity when natural immunity has scientific support to be the more effective immunity? OSHA will have to answer that question before a judge and a poor answer will sink this ETS. If a person has natural immunity, is COVID 19 a grave threat? The data say no. It’s a threat but no where close to a grave threat to someone who’s had covid.

    Finally, OSHA 700 CSHOs to inspect and enforce regulations. The state plan OSHA states have about 1000 more CSHOs. That’s 1700 CSHOs for 80,000,000 workers. The chances that an employer actually gets inspected for COVID non-compliance in the next 6 months is nil.

    This is a misuse of the OSHAct and OSHA. And I’m afraid workplace health and safety will be what gets hurt.

    1. Thomas comment - "And why hasn’t natural immunity been given equal billing as vaccinated immunity when natural immunity has scientific support to be the more effective immunity? OSHA will have to answer that question before a judge and a poor answer will sink this ETS. If a person has natural immunity, is COVID 19 a grave threat? The data say no. It’s a threat but no where close to a grave threat to someone who’s had covid."

      What I find chilling is the CDC is using a couple of very flawed studies in order to make the obviously false claim that vaccination is stronger than natural immunity.

      1. Joe,
        What is even more appalling is that the CDC has ignored the policies and procedures of every health service in the EU, all of which recognize "natural immunity" and have clear procedures about what is needed to establish the fact of a person's immunity.
        Plain old American arrogance, and political influence on a bureaucracy is at work

  9. "Among other things, employees who work remotely or outside are now exempt from the policy. "
    Maybe, sometimes.
    The Dept of Energy has commanded that its vaccination mandate apply even to those who work remotely or offsite.

  10. Is there a difference between an anti-vaxxer and an anti-mandater?

    1. Of course there is, though those in favor of mandates are trying to deny it. It's quite possible to think people should do something of their own free will, and yet oppose forcing them to do it.

      In fact, that's a routine position on post topics. Why not on vaccines?

    2. mydisplayname
      November.4.2021 at 11:54 pm
      Flag Comment Mute User
      Is there a difference between an anti-vaxxer and an anti-mandater?

      The major difference is the 3 covid vaccines are not really vaccines.
      The Israeli study shows the vaccines effectiveness drops off dramtically after 6 months. The Minnesota DOH data shows the same ie IFR and deaths rates for the vaxed wains considerable after 6 months, especially for those over age 60 such that the vaccine has very little effectiveness after 6 months

      The highly touted pro vaccine CDC /Bozio study would show same if they had used a valid control group and valid numerator.
      Similar problem with the kentucky study touted by the CDC which used an invalid numerator. The biggest surprise is that neither study has been withdrawn.

      1. "The Israeli study shows the vaccines effectiveness drops off dramatically after 6 months. "
        Beyond that the virus reproduction rate (Ro) which had been dropping in Israel for a few month suddenly dropped below 1.0 again as soon as a very vigorous booster progam was initiated.

  11. Missing amongst *exemptions* in this bastardized "OSHA Agency Rule Misapplication Exec Order" -- is an allowance of PROOF OF IMMINITY including Antibody, T-Cell, or B-Cell Tests...Or History of a Pos Covid Test.

    In the previously infected, immunity is far stronger than those Vaxed. Vaccines (unfortunately) don't impart T-Cell Memory or a B-Cell response (like normal "Weakened Virus" Vaccines do)...AND Natural Immunity "tags" a multitude of SARS-CoV-2 proteins...not JUST the S1 (which is altered in the Delta Variant - making Vax immunity less potent).

    Since this is NOT about worker safety, the Brandon Administration will claim that those tests aren't perfect. BUT they are FAR BETTER than the current PCR Tests that are allowed for temporary exemption. The inventor of PCR technology claims that the False Positive rate is very high.

    MORE TO THE POINT... Vaccinations are nearly worthless after 6 months according to some very large controlled studies. So, Immunity Tests should be the trigger (If the Order was to protect the employee that the Rules are for -- which, of course, is not the case here)... The Trigger for the Rule should NOT be a Positive History of a VAX.
    The >40% incidence of breakthrough infections is proof that a Vax History is NOT proof of immunity.

    What a totally ugly uncivil and Unconstitutional mess this Exec Order is. An obvious abuse of power... a power that's hard to find in the law. Especially the mis-application of a "Worker Protection" Law/Regulation.

    1. In the previously infected, immunity is far stronger than those Vaxed

      You're reading some bad science.
      It turns out there is increasing skepticism in the scientific community that 'natural immunity' is better, or supersedes vaccination.

      Vaccinations are nearly worthless after 6 months according to some very large controlled studies
      We have one study.
      It's not extraordinarily large.
      It's finding applies only to those over 60.
      It's still 50% immunity.

      1. "It turns out there is increasing skepticism in the scientific community that 'natural immunity' is better, or supersedes vaccination. "
        I'd like to see citations to work outside the US. The raw statistical data in countries with strong booster administration programs, supports the better resilience of "natural immunity."
        I think the claim of "bad science" cannot be supported.

  12. Point #2.

    The Vax is hazardous. That's a fact.

    In young healthy workers (esp. Males) with natural immunity, the Vax is more hazardous than the disease.

    1. That's actually not a fact! Some people present it as a fact, but it turns out that has more to do with people being able to make money stoking tribal grievance populism than it does with real life.

      1. In the very young (under 5yo) it seems to be true, which is why no one is willing to approve a vaccine for that age group, even with political interference.
        In the 5-12 age group, it seems not to be true, although it is currently hard to tell due to a lack of reliable data. Once we get mass vaccinations of this group, we'll have a better idea.
        In the adult population, it is not true (except maybe for pregnant women). The vaccines are significantly beneficial to the general population of adults, and the benefit increase is superlinear as age increases.

        That the vaccine can be harmful is also true - there have been a number of deaths caused by it. As usual, since there are rare adverse reactions to almost anything.

  13. When people outside the Beltway talk about "the swamp", this is what they are referring to.

    The proposed regulation is objectively political in origin.

    The proposed regulation is objectively a misuse of the law and the agency resources that were used to write it.

    The proposed regulation is objectively intended as an exercise of legal warfare. It will drain resources from the courts and the legal profession with very little expectation of "winning".

    The proposed regulation's remedies will objectively do more harm than good. The remedies do not even claim to protect others from harm, it claims to protect people from themselves!

    In short, a more cynical, self-serving, bureaucratic "the process is the punishment" assault on the country would be hard to come by. Those who propose it are evil people who are kicking the nation just as we are trying to get back on our feet.

    I don't care if the President himself asks you to do something. At some point you have to question your motivation for being a civil servant. When you are asked to no longer serve but to objectively hurt your country, that is the day you should move on.

    Shame on all you bureaucrats who wasted all of the money we gave you to propose such a ridiculous set of regulations. Look yourselves in the eye and honestly tell me you served your neighbors, your family, and your friends by what you worked on for 61 days that they -- not you -- paid for.

  14. "Compared to these other policies, vaccine mandates are both far more effective in promoting public health, and far lesser restrictions on liberty."

    I can't even believe I'm reading this at a so-called freedom-loving libertarian blog.

  15. Found a typo. One of the links goes to the wrong article.

    The link in the sentence "As Jonathan Adler explains in his post" goes to Jacob Sullum's post on the OSHA Mandate, not Jonathan Adler's.

  16. A virus very much is a substance or agent, and while some consider alive, many do not. It is entirely reliant on a host cell for everything it does. It's an agent composed of proteins and nucleic acids that is entirely inert until exposed to living tissue, upon which it interacts to alter biological processes in a harmful way.

    Any definition of the hazard posed by 'substance' or 'agent' that constitutes a danger will also apply to a virus. And the dangers of all other substances and agents are also easily avoidable with simple safety precautions.

    That it's not a substance or agent is a truly ridiculous argument that smacks of motivated reasoning rather than intellectual honesty.

    This is a weak argument that gets things precisely backwards. If OSHA can't regulate this, it's not clear it can regulate *any* workplace danger.

    1. Can you describe, then, what is not a "substance or agent"?

      Is there anything in the universe that OSHA cannot regulate, given that all matter or energy is harmful to humans in some form or level of exposure?

  17. " If OSHA can't regulate this, it's not clear it can regulate *any* workplace danger."
    The problem is that the danger of infection is not a danger imposed by or peculiar to the workplace. You'd give OSHA the authority to regulate any public health issue. That cannot be correct as it is far from OSHA's statutory remit.

  18. This is a very helpful outline of potential issues that invite challenges to the new OSHA measures, to be kept at hand while scaling the mountains of court filings that are sure to follow.

    A cavil: perhaps it is not wise to refer to those who are concerned about the Covid-19 vaccination, or more properly, Covid-19 vaccination mandates, as "anti-vaxxers." There are many who would argue that those who resist vaccination merit disparagement and, in turn, merit the use of this disparaging term. Yet, as knowledge about the virus and the pandemic are unfolding in real time, as well as the development of countermeasures, concern about the safety of vaccines, or valid objections thereto on moral grounds, does not render the objector a cretinous luddite, as the "anti-vaxxer" term suggests.

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