The Volokh Conspiracy
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This morning, the Occupational Health and Safety Administration has finally released its Emergency Temporary Standard (ETS) requiring COVID-19 testing or vaccination in private workplaces. As the White House instructed, the ETS requires all employers with 100 or more employees, firm-wide, to either require employees receive COVID-19 vaccinations or submit to weekly COVID testing and wear masks in the workplace. Significantly, the ETS also contains a carve out for employees not at the workplace that could narrow the rule's scope significantly. I suspect this carve out was adopted to blunt the expected legal challenges to the rule, and may explain why it took OSHA two months to adopt an "emergency rule."
I provided extensive background on OSHA's authority to adopt such a rule, and the likely legal complications, back when the ETS was announced in September. OSHA's lawyers (with an assist from OIRA) have clearly spent much of the time since working through the legal issues in an attempt ensure the standard may be imposed. The result is a 490 page rule with preamble. (The ETS itself is only 17 pages, and is at the end.) These issues include whether COVID can be considered a "grave danger" to employees in the workplace (not merely a "significant risk"), and whether these requirements can be considered "necessary" (as opposed to merely "reasonably necessary or appropriate") to address the danger.
As I noted in my September post, one problem OSHA faced is that imposing the requirement on employers based upon the total number of employees would not fit well with OSHA's authority to address workplace risks and would be legally vulnerable as the size of an employer is a poor proxy for the risk of COVID to unvaccinated employees. This is particularly so because the ETS covers all employers with 100 or more employees firm wide, so is not based upon the risks posed by, for instance, the existence of workplaces in which large numbers of employees congregate or interact.
The OSHA ETS addresses this issue not by narrowing the scope of covered employers, but rather by exempting employees who do not report to a workplace where other individuals are present, who work from home, or who work exclusively outdoors. OSHA apparently realized that COVD exposure in the workplace cannot be considered a "grave danger" to such employees, and that a vax-or-test requirement could not be deemed "necessary" to those employees. After all, OSHA's authority only extends to dangers in the workplace. So while OSHA may regulate to address risks that are also present outside of the workplace, it only has authority to regulate insofar as the risk is present in the workplace, and its measures are only necessary insofar as they address the workplace risk. Put another way, the language of the statute does not allow OSHA to use workplaces as a means of addressing risks more broadly (although some suspect that is part of what the Biden Administration is trying to do).
While employees are exempt from the requirements if they are not in the workplace, employers are covered if they have 100 or more employees. OSHA justifies this on administrability concerns. It is confident firms with 100 or more employees will be able to administer and comply with the requirement, but not sure that this is so for smaller firms. Yet because this is an ETS, OSHA is beginning a notice and comment period for a final, permanent standard, and it has indicated that it will consider lowering the threshold for the rule's applicability.
Legal challenges to the rule are certain to be filed. One potential vulnerability is OSHA's claim that the ETS is "necessary" to address a "grave danger." Given declining COVID mortality and morbidity, OSHA's rationale here will be questioned. Recall that OSHA must show that the risk of COVID in the workplace is greater than the "significant risk" required for regular OSHA standards. OSHA addresses this in part by focusing on the risk posed to unvaccinated employees, but there is a question as whether this will be enough to reach the "grave danger" threshold. (In this regard, waiting so long to issue the rule, while not necessarily of legal relevance, does not help OSHA's case.)
Another vulnerability may be the broad sweep of the mandate, which takes little account of the nature of individual workplaces and the extent to which workplace structure, firm policies, and other precautionary measures may reduce the likelihood of COVID spread to unvaccinated employees. It is one thing to impose a vax-or-test requirement in a meat-packing plant or factory floor, where lots of employees congregate. It is another to impose such a requirement at a home office in which employees are rarely in large meetings or have extended face-to-face interactions. While exempting employees who work alone elsewhere, at home, or outdoors helps, I suspect some employer groups will challenge OSHA's assumption that these are the only contexts in which OSHA's requirements are not necessary. I suspect part of OSHA's response will be that this is an ETS, that the nature of such a standard is that it will (of necessity) be somewhat imprecise, and that OSHA will adopt a more narrowly tailored final rule later on. There's some force to this argument, but its also in some tension with the relevant statutory text.
While many vaccine mandates are challenged on religious liberty grounds, I do not expect that to be a fruitful line of attack here. The ETS requires vaccination or testing, and exempts employees who do not come to an indoor workplace where they interact with other employees, so those with a religious objection to vaccination have an alternative which should accommodate such objections.
On additional note (added after post first published), the ETS expressly preempts any state or local laws or regulations that would limit an employers ability to adopt a comprehensive vaccination requirement or a vax-or-test requirement (unless the state is operating under an OSHA-approved OSH plan). As is often the case with federal regulations, if a regulated firm cannot comply with both federal and state requirements, the federal rule trumps. OSHA is pushing on this a little bit, as it seeks to preempt state laws that would allow a vax-or-test rule, but that would not allow an across-the-board vaccination requirement. As the vax-or-test option also requires that unvaccinated employees wear masks in the workplace, OSHA is seeking to preempt state laws that bar mask requirements as well.
The rule takes effect 30 days after publication in the Federal Register (so 30 days from tomorrow), and testing must begin within 60 days of publication. These delays—like the two months it took OSHA to write the ETS after it was announced—will be pointed to as evidence that this is not much of an "emergency." On the other hand, trying to impose something like this on a shorter timeline would have been an administrative disaster and would have prompted howls of protest from regulated firms. So these delays are good twitter points, but not likely to be very relevant legally.
I might have more when I've fully digested the preamble, and I'll likely comment on suits as they are filed.
UPDATE: I thought it worth noting that I have a different take on the legal vulnerabilities of the ETS than does my co-blogger Ilya Somin. Several aspects of the rule be believes make it legally vulnerable are in line with OSHA's historic practice and with other OSHA rules that have been upheld by appellate courts.
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. Further, the OSH Act has always been interpreted to cover hazards beyond those created by chemical agents. Accordingly, OSHA has long regulated machinery and physical workplace conditions.
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). Invalidating the COVID ETS on any of these grounds would thus call into question decades of OSHA practice that has been repeatedly upheld by the courts. This does not mean the COVID ETS will (or should) withstand legal challenge. It just means the vulnerabilities lie elsewhere.