Emergency temporary standard facing rocky road to implementation, according to leading workplace safety lawyer
Early in September, President Biden announced that the Occupational Safety and Health Administration (OSHA) would issue an Emergency Temporary Standard (ETS) to require that all employers with 100 or more employees ensure that every eligible worker is either vaccinated, or submit to at least weekly COVID-19 testing. Now, almost a month later, the emergency plans are still being flesh out and questions abound as to what the ETS will look like:
“There’s been a lot of discussion and debate about [the ETS] and what that is going to mean for employers. The fact is, we don’t know exactly yet until we see the wording of that ETS and OSHA is currently working on drafting that,” says Melanie L. Paul, co-leader of law firm Jackson Lewis’ Workplace Safety and Health practice group.
Paul says that over the course of its 50 year history, OSHA has not issued a large number of these emergency temporary standards. They are made for very special circumstances, where the agency gets to bypass the normal processes in place under the Administrative Procedures Act.
Due to the contentious nature of vaccine mandates – not just in the U.S. but around the world – Paul says that challenges are to be expected.
“We fully expect there to be multiple legal challenges to this once it actually gets issued,” she says.
Indeed, a number of states’ attorney generals have already indicated that they would be fighting the mandate on a number of grounds and other organizations, industry groups and individual employers may seek to challenge it as well.
Arizona, for example, has already filed a lawsuit just based on Biden’s announcement of his Path Out of the Pandemic COVID-19 Action Plan. The lawsuit is based on the Equal Protection Clause of the U.S. Constitution, and alleges that undocumented aliens (i.e. those without an official status in the country) are being treated more favorably because they are not being required to be vaccinated while U.S. citizens will be when the ETS is issued. This lawsuit may be premature given that OSHA has not yet issued the ETS.
“There are a number of other hurdles that OSHA faces,” says Paul. “For example, in order to justify an ETS, [the government] has to show that there is a grave danger that supports the need for the ETS.”
Some argue that at this stage in the pandemic, the danger has waned – certainly with the introduction of voluntary vaccines.
In addition, those who oppose the ETS may question why it should apply to every industry rather than industries or sectors like healthcare where COVID-19 is an occupational hazard.
COVID-19 guidance depends on state to state – some states have governor mandates that prohibit either vaccine passports or prohibiting employers from requiring or mandating vaccines in the workplace.
This will be another yet challenge to the ETS.
Paul says that they also anticipate some challenges in court. For example, any organization challenging the ETS would request a temporary restraining order from enforcing the ETS. While the court case plays out, the ETS may not go into effect.
What needs to be made clear is that OSHA will actually be giving employers an option to require the vaccine or to ensure that its workforce is undergoing regular testing if they are not vaccinated. This provision will be written into the ETS and does give employers an out if they do not want to mandate the vaccine for their workforce.
This alternative seems to have gotten lost in outrage the mandate has sparked among certain groups.
And even once the ETS is potentially put into place, employers still have questions, says Paul. From an administrative resource standpoint, are there enough testing companies and tests? Who should administer the tests? What types of tests will be sufficient? Who should pay for them?
Biden has also told OSHA that he wants paid time off to be included in the ETS, but it is questionable as to whether OSHA has authority to mandate paid time off – something which historically does not fall within the jurisdiction of the agency. But then again, one could make the argument that if an employee has COVID, you would certainly not want them in the workplace. Requiring paid time off would potentially encourage employees vaccinated or not, from coming to work if they are experiencing any COVID-19 symptoms.
“These are all questions that people are raising, and that employers will need to know and understand in order to make an informed decision about which way they want to go with this,” says Paul.
And though OSHA has been given this daunting task, how will it manage?
Would enforcement comes with penalties? What would the nature of the penalties be?
In addition to this, says Paul, it will be interesting to see – if the ETS takes effect, how the agency will oversee additional inspections:
“OSHA is already experiencing a record low of compliance safety and health officers and the agency is trying to fill positions. From a resource standpoint, the agency has already been stretched during the pandemic [and] it’s going to be a challenge for them to have the resources to try to conduct these inspections related to the vaccine ETS.”
While there isn’t a specific deadline for the ETS to be implemented, there are hopes that it will be completed by the end of the year.
Says Paul: “[OSHA] will want to draft [the ETS] to be as strong as possible to withstand any legal challenges that the agency might face.”