Armageddon is coming — courtesy of a few Republican governors who believe that strong opposition to vaccine mandates has become a prerequisite for being a Republican politician in good standing. So when President Biden directed OSHA to issue an Emergency Temporary Standard mandating COVID-19 vaccinations (or weekly testing) for employees in companies that employee 100 or more employees, Republican politicians dutifully stated their opposition (even threatening OSHA’s funding). Some Republican governors declared war. South Carolina Governor Henry McMaster tweeted his opposition and identified the battleground on which he would fight:
Rest assured, we will fight them to the gates of hell to protect the liberty and livelihood of every South Carolinian.
— Gov. Henry McMaster (@henrymcmaster) September 9, 2021
The gates of hell being occupied by South Carolina, Arizona Governor Doug Ducey is planning to take the more traditional judicial route warning that Biden’s order is illegal and “will never stand up in court.” Montana Governor Greg Gianforte signed a law in May that prohibits Montana employers from requiring workers to get vaccinated.
We will fight them to the gates of hell to protect the liberty and livelihood of every South Carolinian — Governor Henry McMaster
Not to be outdone, Texas Governor Greg Abbott issued an Executive Order on October 11, forbidding vaccine mandates for any person, including an employee, “who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.” Abbott also requested that the Texas House and Senate pass similar legislation. Many large companies are ignoring Abbott’s order or deferring to the federal OSHA standard, when issued.
Florida Governor (and future Presidential Candidate) Ron DeSantis is calling for a Special Session of the Florida Legislature “to provide protections for employees who have lost their jobs or are having their employment threatened due to vaccine mandates.”
And the Florida House Speaker & Senate President say they’re considering whether “to withdraw from the Occupational Safety and Health Administration and establish our own state program. We believe that by doing so, Florida will have the ability to alleviate onerous federal regulations placed on employers and employees.”
They seem to have missed that part in the law that obligates OSHA state plans to adopt all OSHA standards. In fact, as we saw earlier this week, OSHA is acting to revoke the state plans of states that are refusing to adopt OSHA’s previous COVID-19 Emergency Temporary Standard.
Today, Arizona Attorney General Mark Brnovich requested a temporary restraining order in an effort to stop OSHA from mandating COVID-19 vaccines.
Finally, at least two-dozen Republican Attorneys General have threatened lawsuits. calling the proposed standard “illegal,” “disastrous and counterproductive,” “unlawful and harmful” and a “threat to individual liberty.” They argue, among other things, that COVID-19 is not a “substance,” “agent” or “hazard” to which the Occupational Safety and Health Act refers because COVID-19 is not a work-related disease. Tell that to the tens of thousands of retail, health care, meat processing, transportation and other workers who contracted COVID from on-the-job exposures. I would also refer the AGs to the highly effective 1991 OSHA bloodborne pathogens standard that protects workers against HIV and Hepatitis-B.
Almost all of the opposition focuses on the damage that these mandates will allegedly do to the economy, as millions of well-meaning workers are fired for not giving up their “freedom” to infect others. The fact, however, is that so far, corporate mandates have been surprisingly successful. Vaccination rates have gone up significantly and relatively few employees have left their jobs.
OSHA Fights Back
OSHA is not backing down. In fact, the agency has taken the initiative against three OSHA state plan states — Arizona, South Carolina and Utah — that have failed to adopt the June 21 OSHA Emergency Temporary Standard that protect health care workers.
The governors of those states are not pleased. Arizona Governor Ducey has called OSHA’s action “nothing short of a political stunt and desperate power grab. ”
South Carolina’s McMaster has steam shooting from his ears, tweeting that he was headed to court to vigorously protect South Carolina employers. (No mention of vigorous protection for South Carolina’s workers which is what the South Carolina OSHA program is supposed to be about.)
To protect South Carolina employers, I have instructed LLR Director Emily Farr to begin immediate preparations for a vigorous and lengthy legal fight.
— Gov. Henry McMaster (@henrymcmaster) October 20, 2021
According to the Governor of the state where where the Civil War started, “I think they have probably singled us out because we are a powerful voice for the constitutionality of legislation and laws and they are violating constitutional principles.”
We’ll soon see if these efforts are successful in convincing other resistant state plan states to adopt the forthcoming OSHA emergency standard that will required vaccines or weekly tests for workers in companies with 100 or more employees.
How Will Federal OSHA Confront the King of Texas and other Hostile Governors?
For the 24 states that don’t have full OSHA state plans, such as Texas and Florida, the Supremacy Clause of the Constitution and the text of the Occupational Safety and Health Act give OSHA exclusive authority to determine workplace safety and health conditions. Nevertheless, it is unlikely that the Constitution will stop many of those governors from suing OSHA to challenge that authority.
Governor Abbott can say everybody has to wear a mask or obligate workers have to be vaccinated, but there is no anti-emergency situation where he can say you can’t require vaccinations. He is not the king of Texas. — David Michaels
Former OSHA head David Michaels predicts that Texas Governor Abbott may be looking forward to a lot of frustration:
First of all, it is clear that federal rules and regulations preempt or trump state law or regulation, whether or not the Texas legislature passes it or the governor just pronounces it because he thinks he can. This the Supremacy Clause clause of the Constitution. If they went to court, the federal government would probably win. In an emergency situation, a public health situation, the governor can say everybody has to wear a mask or obligate workers have to be vaccinated, but there is no anti-emergency situation where he can say you can’t require vaccinations. He is not the king of Texas.
In addition, it is unclear whether the Governors can legally sue OSHA:
States…probably don’t have legal standing to challenge the rule, according to Georgetown University law professor David Vladeck. “I don’t think it’s going to be easy for a state agency to say I represent the business community here,” Vladeck said. “The business community is perfectly able to represent itself.”
And lawsuits by some in the business community against individual corporate mandates are failing.
Finally, the OSHA standard will not be a pure vaccine mandate. It will require employees to be vaccinated or tested weekly. How the testing option will play out with state laws opposing vaccine mandates (but not weekly testing) is unclear.
Stakeholders Provide Input
Meanwhile, numerous business associations (as well as the AFL-CIO) and concerned individuals are meeting with the Office of Information and Regulatory Affairs (OIRA) to provide their input while OIRA is reviewing the final OSHA standard. As of this morning, almost 70 organizations and individuals have met with OIRA or are planning to meet. Many are business associations who are not necessarily opposing the OSHA standard, but concerned that it will affect their bottom line if they are required to pay for vaccinations.
Eric Conn, a workplace safety lawyer who met with OMB officials on behalf of a coalition of businesses with thousands of workplaces nationwide that generally support vaccine requirements, said he also raised questions about who would pay for coronavirus testing for employees. “If you’re trying to get vaccine-resistant employees to get vaccinated, it would be crazy to require employers to pay for that testing option,” he said.
Crazy? Not really. First, if employers are concerned about paying for tests, they will likely have the option of just requiring everyone to get free vaccines. Also, requiring employees to pay for tests would be unprecedented in OSHA’s 51 year history. OSHA has never required employees to pay for any testing, equipment or vaccines required by OSHA standards.
Others are asking that the requirements be postponed until after Christmas in case companies face employee resignations during the busiest time of the year. The problem with delay is that it already takes a month from the first vaccination until an employee is fully vaccinated. If OSHA waited until January for the requirements to kick in, employees wouldn’t be fully vaccinated until next February at the earliest.
More on the employer perspective from the aforementioned Eric Conn here.
The AFL-CIO, on the other hand, is generally supportive of the new standard, but wants to make sure that unions have the opportunity to negotiate how the provisions of the standard will be implemented. The unions would also like to see OSHA require other mitigation measures like mask requirements and improved ventilation.
And then there are the fringe conspiracy theory types. The Washington Post notes that
On some online conservative message boards, vaccine opponents have strategized about slowing down the process by requesting meetings with OMB. “If anyone wants to jam up the OSHA vaccine mandate rule, you can go to this page and request a meeting with OMB,” read one post on a gun rights site. “If a few hundred thousand people request meetings, this rule will be tied up in OMB for years.”
That is not likely to work. OIRA is making a good-faith effort to get as much stakeholder input as possible, but there is no legal requirement that they meet with everyone who wants a meeting. When the OIRA review is finished and OSHA is ready to issue, the standard will be issued even if some requested meetings don’t happen.
Of course, OSHA may be the least of everyone’s problems. OIRA is reviewing another regulation that the Centers for Medicare and Medicaid Services (CMS) will issue, requiring employees of all health care facilities that receive Medicare or Medicaid funds to be vaccinated. That mandate will have no weekly testing option. And under another Biden Executive Order, all government contractors and subcontractors must ensure that their employees are vaccinated by December 8 — including employees of small employers and employees who work remotely. There is no weekly testing option for federal contract employees. There are plenty of government contractors located in Texas, Florida and other red states — universities, defense contractors and others.
So it should all be interesting. We’ll see you all soon at the Gates of Hell.