Under the leadership of Texas Governor Greg Abbott, Republican-led states are preparing to challenge the legality of the Biden government’s vaccine mandate for private companies before the Department of Labor even publishes the rules.
President Joe Biden last month directed the Occupational Safety and Health Agency, a tiny agency that oversees workplace safety, to write rules requiring private companies with 100 or more employees to vaccinate or test their employees against Covid-19 who don’t do this at least once a week.
More than 130,000 companies in the US are preparing for the new rules that will apply to about two-thirds of workers in the private sector. OSHA told CNBC that it submitted its proposal to the Office of Management and Budget on Tuesday evening.
“Every day we see more companies implementing vaccination regulations and the increasing data shows that they are working. Companies and organizations that enforce regulations are seeing their vaccination rates rise by an average of 20% or more to well over 90%, “Biden said in an address to the nation Thursday. “Let’s be clear, vaccination requirements shouldn’t be another issue that separates us.”
The rule is expected to take effect soon after the OMB review is complete. Because it is written as part of an emergency procedure, OSHA can cut down on some of the usual regulatory bureaucracy, such as a public comment deadline, which it would normally delay by several months. According to Debbie Berkowitz, who served as chief of staff and senior policy advisor to OSHA during the Obama administration, OSHA will likely give companies time to fulfill the new mandate before full enforcement begins.
The U.S. Chamber of Commerce asked the government for more clarity on vaccine and testing requirements at a meeting with White House officials in the Office of Management and Budget on Friday.
“We started with the very serious concern of our members about the possible loss of staff. That is a very real concern and we have been very strong on the description,” said Marc Freedman, a top lobbyist who attended the session for the chamber .
He said the cutoff at 100 employees doesn’t make sense. And in a tight job market so close to the holidays, they asked if compliance could begin after the busy shopping season so that their members’ workforce would not be affected, he said.
Abbott hopes to forestall the new rules and is enacting an executive order on Monday that will prohibit any facility from requesting vaccines for anyone who raises objections based on personal conscience, religious belief, or medical reasons, including past recovery from Covid.
Texas-based Southwest Airlines and American Airlines announced this week that they expect to be subject to federal vaccine mandates. As federal contractors, these airlines have stated that they are subject to the Biden administration’s vaccine regulations, which are stricter than the upcoming OSHA rules.
The broad national mandate will almost certainly face additional legal challenges. Almost every GOP attorney general in the US signed a letter to the president last month promising to use “every available legal option” to stop the mandate, calling it “counterproductive and harmful”.
“The one-size-fits-all approach you have prescribed makes it clear that you want to use the Occupational Safety and Health Act as a pretext to enforce an unprecedented, controversial health measure nationwide that only incidentally affects the workplace,” the Republican attorneys general wrote.
Florida Governor Ron DeSantis said Tuesday the state legislature should pass laws preventing companies from firing people who do not want to be vaccinated.
However, according to David Vladeck, a law professor at Georgetown University, states likely have no legal power to challenge the rule.
“I don’t think it will be easy for a government agency to say that I represent the economy here,” said Vladeck. “The business world can represent itself perfectly.”
All signs point to a likely showdown in the courts between administration and corporation. Trade groups have expressed skepticism and concern, and some are totally against it.
In a September letter to the Secretary of Labor, the U.S. Chamber of Commerce raised a long list of questions from companies, ranging from paying for testing costs to how employers deal with workers who refuse to be vaccinated or tested.
The National Retail Federation, in a letter to Secretary of Labor Marty Walsh on Tuesday, said it feared the requirements could worsen labor shortages as the busy Christmas shopping season approaches. The organization suggested a 90 day implementation deadline to give companies time to comply.
The Retail Industry Leaders Association has called the standard “a colossal endeavor” and warned that “testing capacity must scale immensely” to meet anticipated demand. The National Association of Manufacturers said its members shouldn’t be burdened with “unreasonable compliance costs”.
The National Federation of Independent Business flatly rejects the rule, accusing the Biden administration of “commanding” companies to act as an “instrument of coercion” against employees.
The law empowers the Minister of Labor to issue what is known as a temporary emergency standard if he or she discovers that workers are “exposed to serious danger through exposure to substances or agents classified as toxic or physically harmful, or through new hazards are”. The emergency standard is to be replaced by a permanent regulation after six months.
Republican attorneys general argued in their September letter that staff are generally not at risk from Covid because of the level of vaccination in the public and natural immunity among those who contracted the virus and have since recovered.
They also argued that OSHA can only regulate workplace-specific hazards, not those that are common worldwide. The National Retail Federation echoed this view in its letter.
“The agency cannot expect employers to control the behavior of their employees in their activities outside of work,” wrote the association’s top lobbyist, David French.
“Workers everywhere are at risk from COVID-19,” French said. “They are at risk from COVID-19 because they are people who walk the world, not because they go to work.”
That’s where Republicans and Democrats largely disagree. The virus has infected nearly 45 million Americans and killed more than 721,000, according to Johns Hopkins University.
“OSHA’s mission is to protect workers from harm, and in this case an infected worker, an unvaccinated worker, poses a potential danger to other workers,” said Jordan Barab, OSHA deputy deputy secretary during the Obama administration .
The rule allows those who do not wish to be vaccinated to opt for weekly testing instead. According to the Centers for Disease Control and Prevention, more than 65% of the US population have had at least one Covid shot while 56% are fully vaccinated.
However, according to David Michaels, former OSHA chief of the Obama administration and epidemiologist, many employers might decide that it is more cost-effective to only ask for vaccines from the start.
“Many of us hope that most employers will do what United [Airlines] has done and says that all workers must be vaccinated unless they have an illness or strong religious belief, “said Michaels, who is now a professor at George Washington University.
OSHA’s emergency standards have a mixed track record in court. In order to withstand legal scrutiny, the agency not only has to demonstrate that there is a serious risk, but also that the rule is necessary to protect workers from that risk.
Proof of necessity is a high legal hurdle that could be vulnerable in court, according to Dorit Reiss, an expert on public health regulation at UC Hastings College of Law. Prior to the pandemic, the agency hadn’t issued an emergency standard since 1983 when it tried to reduce workers’ exposure to asbestos.
The U.S. Fifth District Court appeals have invalidated the standard; the OSHA ruling did not show that the rule is necessary to protect workers from the danger. The agency has issued temporary emergency standards ten times since 1970, and the courts have stopped or completely overturned them four times, according to the Congressional Research Service. A fifth emergency standard was partially cleared by court order.
Republican attorneys general are now arguing that Biden’s vaccine and testing mandate is not required, claiming there are less intrusive ways to fight Covid. They also argue that the mandate doesn’t make sense for companies with employees who are mostly at home or work outside of the office.
Vladeck said, however, that the vaccination or testing mandate is clearly a matter for OSHA, backed by a century of case law that gives the government the power to issue public health obligations.
“OSHA has extensive powers within Congress and its goal is to protect the health and safety of all working men and women in the United States,” he said.
The White House has rejected the opposition, arguing that Covid is clearly a serious threat to workers and that federal laws supersede state law.
“The law essentially requires the Department of Labor to take action if it detects a serious threat to workers,” White House press secretary Jen Psaki said in September. “And certainly a pandemic that killed more than 600,000 people is considered to be [a] ‘serious risk for workers.’ ”