OSHA’s Emergency Temporary Standard

Will Brandt, Class of 2022, Belmont Law

On November 5th, 2021, the Occupational Safety and Health Administration (OSHA) published the COVID-19 Vaccination and Testing; Emergency Temporary Standard (ETS). To summarize the ETS, employers who employ over one hundred employees, or Covered Employers, “must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.”

A question that has plagued media sources and Facebook posts throughout the United States: Are these vaccine mandates legal? The Biden administration is mandating the vaccine and testing requirements through OSHA. The operative law, which allows OSHA to make regulations, is the Occupational Safety and Health Act of 1970. The OSHA Act of 1970 empowers OSHA to develop workplace standards to keep workers safe in their employment. Typically, the dangers of the workplace manifest in risks that are specific to a job, not a virus that is widespread throughout the community.

Interestingly, OSHA has issued this specific regulation under an Emergency Temporary Standard. What this means is that the regulation “takes effect immediately and are in effect until superseded by a permanent standard.” To use the ETS, OSHA must demonstrate that there is a “grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards and that an emergency standard is needed to protect them.” However, the validity of the use of an ETS may be challenged in the appropriate U.S. Court of Appeals.

Currently, GOP lawmakers are arguing that this use of the ETS to mandate vaccines and testing is essentially forcing regulation onto the American people through improper channels. To support this argument the point is made that OSHA is meant to regulate the workplace, and through this ETS, it has exceeded the scope of its mandate by doing this as a matter of public health rather than worker safety.

Procedurally, the Biden Administration has the power to direct OSHA to develop these regulations. OSHA has the legal right to issue these emergency regulations. The question whether OSHA can prove that this ETS regulation is necessary for the current risk posed to workers by COVID-19. There exists debate about why the OSHA ETS only places these mandates on employers who employ over one-hundred employees, but the most likely reason seems to be that larger workforces have a larger network, which increases risk of infections coming into the office. As a final point, it should be noted that employers can enforce these mandates so long as there are accommodations made for religious objections or medical reasons.

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