Last week, after a herculean feat of work, the Occupational Safety and Health Administration issued its second Emergency Temporary Standard (ETS) in 6 months in an effort to protect the nation’s employees from COVID-19 infections acquired at work. The first ETS, issued last June, targeted the nation’s health care workers who have borne the heaviest burden in terms of illness and death over the past almost two years. (I say “herculean,” because it normally takes OSHA 10 to 20 years to issue a major standard.)
There is a lot at stake here: OSHA’s authority to set workplace conditions, OSHA’s ability to issue Emergency Temporary Standards and, most importantly, the health and lives of hundreds of thousands of American workers
The second ETS, published in the Federal Register Friday morning, covered 84 million workers and required all workers in companies with 100 or more employees to be vaccinated or tested weekly. OSHA estimates that this standard will save over 6,500 worker lives and prevent over 250,000 hospitalizations over the course of the next six months. And these are solely the lives of workers. Because OSHA’s jurisdiction is just workers, the agency’s analysis doesn’t count the thousands of people in the country outside of the workplace — family members, friends and others — who will not be infected by the hundreds of thousands of workers protected by this standard.
Despite the huge number of lives potentially protected by this tiny agency, a conservative 3-member panel (appointees of Ronald Reagan and Donald Trump) of the 5th Circuit Appeals Court in Texas blocked the standard less than 2 days after it was issued. The two page court order said that judges were blocking the regulation “because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate.” (Ignoring the fact that OSHA did not issue a vaccine mandate.)
A Vast Right-Wing Conspiracy?
The leaders of the lawsuit that the Court considered is BST Holdings and the Trosclair family which owns a group of retail supermarkets in Louisiana and Mississippi and represented by the Liberty Justice Center (LJC). The Liberty Justice Center also played a central role in Janus vs. AFSCME, a recent Supreme Court Decision that stripped public employee unions of the right to collect fair share fees from non-members.
And behind them is the National Retail Federation (NRF). As former OSHA Assistant Secretary David Michaels writes in an important Tweet thread, the NRF not only overlooks the number of retail workers who have been infected on the job during the pandemic, but is falsely claiming that the OSHA standard is a “vaccine mandate.”
Assuming NRF officials, the Trosclairs and the LJC can read English, they know well that OSHA did not issue a vaccine mandate; the agency issued a safe workplace standard that requires workers to either get vaccinated or get tested weekly. OSHA is not requiring any worker to get vaccinated.
Assuming the petitioners can read English, they know well that OSHA did not issue a vaccine mandate; the agency issued a safe workplace standard that requires workers to either get vaccinated or get tested weekly. OSHA is not requiring any worker to get vaccinated.
And as Dr. Michaels also points out, the retail industry should be welcoming this standard — especially with the holidays approaching. Not only will the standard encourage the return of workers who left their jobs in fear of COVID, but the vax-or-test requirements should encourage more shoppers to go back into stores, knowing they are safer.
What Happens Now?
The stay has no immediate impact on workers or employers because no requirements of the standard come into effect until December 5, and the vaccine-or-test requirements don’t kick in until January 4.
By 5:00 CST this afternoon, November 8, the Department of Justice (along with the Department of Labor) will file briefs with the 5th Circuit, and the plaintiffs who filed the suit will have a couple of days to respond. At some point soon after, the Court will make a final decision on whether the temporary injunction should be made permanent or whether it should be dissolved. The losers of that decision can either ask the full 5th Circuit to decide “en banc,” or ask for a decision from the Supreme Court’s “Shadow Docket.” The Shadow Docket is the use of emergency orders and summary decisions by the Supreme Court of the United States without oral argument.
Meanwhile, anyone has 10 days to file a lawsuit against OSHA challenging the overall constitutionality of the standard. This is nothing new. Lawsuits have been filed by the business community after almost every standard OSHA has ever issued. There have already been numerous lawsuits from industry and Republican state Attorneys General, and the AFL-CIO will presumably sue as well — likely focusing on issues like employer payment for tests, the small business cutoff and/or OSHA’s failure to require additional mitigation measures.
Then a lottery will be held to determine which of the nation’s 12 Circuit Courts of Appeal will decide the case. Obviously, some Circuits are better than others. The Fifth Circuit, which blocked the OSHA standard on Saturday, is the worst. Enemies of the standard may will also hope that the conservative 8th Circuit is chosen. Best for OSHA would be the DC Circuit and this would make sense, because the DC Circuit has special expertise in the issue as they are already deciding a court challenge from the AFL-CIO which sued OSHA to broaden the health care worker ETS to other workers outside of health care. (That suit was temporarily suspended in anticipation of the second ETS.)
If the 5th Circuit decides to maintain the stay, whatever Circuit “wins” the lottery will first decide whether the injunction will be overturned. That Appeals Court will then at some later date hear the full arguments of both sides to determine the ultimate fate of the standard. Whatever the Appeals Court eventually decides can then be appealed to the Supreme Court. No newly issued OSHA standard has been stayed since the lead standard that was issued in 1978. Only part of that standard — engineering controls for certain industries — was stayed by the Court until OSHA could provide a better explanation of the standard’s feasibility.
What’s the Legal Challenge About?
At the core of the legal challenge is whether the standard is constitutional: Did OSHA exceed its legal authority in issuing the rule? Or does such a vaccination (or test) rule need to be passed by Congress.
The suit against the standard stated that President Biden “set the legislative policy” of substantially increasing the number of Americans covered by vaccination requirements, and “then set binding rules enforced with the threat of large fines.”
“That is a quintessential legislative act — and one wholly unrelated to the purpose of OSHA itself, which is protecting workplace safety,” the suit argued. “Nowhere in OSHA’s enabling legislation does Congress confer upon it the power to end pandemics.”
The Department of Labor, of course, disagrees. “The Occupational Safety and Health Act explicitly gives OSHA the authority to act quickly in an emergency where the agency finds that workers are subjected to a grave danger and a new standard is necessary to protect them,” according to DOL Solicitor Seema Nanda. In other words, OSHA did not act to “end the pandemic;” OSHA acted to protect workers which is entirely under OSHA’s jurisdiction.
Former OSHA Region 1 Solicitor Michael Felsen told Inside OSHA that
The ETS is warranted because workplaces pose a high danger of COVID-19 infection, and more so to employees than visitors or customers at sites open to the public. “Conditions at workplaces are such that people are around each other eight hours a day, if not more, in close proximity. Those are potential breeding grounds, or actual breeding grounds, for COVID,” he said. “People just going briefly to a grocery store wearing a mask are going to be less exposed, than, for example the grocery store worker who is there eight hours a day being exposed to hundreds and hundreds of people.”
“The side that is asking for the injunction has to prove that this rule violates the Constitution,” said Mark F. Kluger, founding partner at the employment law firm Kluger Healey, quoted in the New York Times. “That’s a really tough burden to meet,” he added, noting that “federal agencies over the years have become increasingly aggressive about passing or creating rules.
Other faulty arguments of the lawsuit include the argument that OSHA only has responsibility to address “grave danger” of toxic chemicals and other hazards in the workplace, and COVID-19 is not a “toxic chemical” covered by the standard. Actually, the Occupational Safety and Health Act authorizes OSHA to protect workers from “toxic materials or harmful physical agents,” — which include infectious diseases — and in 1991, OSHA issued a successful standard protecting workers from bloodborne pathogens such as HIV and hepatitis B.
They also argue that “OSHA’s authority is limited to workplace-related hazards, but the risk of COVID-19 infection is a society-wide danger.” OSHA, of course, often regulates hazards that do not exist exclusively in the workplace. Noise is one example. In addition, workers can be exposed to a variety of chemicals in the workplace and at home.
There is a lot at stake here: OSHA’s authority to set workplace conditions, OSHA’s ability to issue Emergency Temporary Standards and, most importantly, the health and lives of hundreds of thousands of American workers. Watch this space.