Thread by @jonhyman

Will OSHA’s Emergency Temporary Standard (ETS) mandating that all employers with 100 or more employees mandate the Covid vaccine for its employees or mandate weekly weekly Covid testing pass judicial scrutiny? A thread. #OSHA #VaccineMandate #Covid19 1/

TL;DR: OSHA’s Covid vaccine mandate ETS likely is illegal. Here’s why. #OSHA #VaccineMandate #Covid19 2/

Unlike OSHA’s traditional standards, an ETS skips OSHA’s long rulemaking process. It allows the agency instead to issue a temporary standard to last 6 months and to address a bona fide safety emergency in the workplace. #OSHA #VaccineMandate #Covid19 3/

Such emergency rules are rare—and are intended to be so. OSHA is authorized to issue them only if doing so is “necessary to protect workers from grave danger.”
#OSHA #VaccineMandate #Covid19 4/

The agency has issued 10 emergency temporary standards in its 30-year history. Of those 10, so have been challenged in court. Only one (Acrylonitrile, a carcinogenic chemical used in rubber manufacturing) survived that challenge, back in 1978. #OSHA #VaccineMandate #Covid19 5/

There is no doubt that the ongoing Covid pandemic continues to be a national emergency. But does this ETS as proposed “necessary to protect workers from grave danger”? No. #OSHA #VaccineMandate #Covid19 6/

Why not? First, what’s the grave danger if this ETS only applies to employers with 100 or more employees? Aren’t the workers with fewer employees also subject to same risk? If OSHA’s not protecting them, too, is it a grave danger? #OSHA #VaccineMandate #Covid19 7/

Secondly, this rule is too overbroad. By addressing “all employees” it presumably will cover even those who are working from home and never entering the workplace or presenting and risk of danger, grave or otherwise. #OSHA #VaccineMandate #Covid19 8/

Finally, we already have measures in place to protect employees in the workplace. They are called masks, distancing, and other Covid mitigation measures OSHA already recommends, along with vaccines for those who are already vaccinated. #OSHA #VaccineMandate #Covid19 9/

Thus, while I continue to believe that universal vaccinations are the best way out of this pandemic, I can’t say that failing to vaccinate all employees poses grave danger, provided other safety and mitigation measures are taken. #OSHA #VaccineMandate #Covid19 10/

We’ll see myriad legal challenges to this ETS in courts all over the country. Philosophically, I’d like them to fail because I believe in the vaccine’s universal adoption. Legally, however, I don’t see a way for this ETS to pass judicial muster. #OSHA #VaccineMandate #Covid19 11/

Also, which I should have added above, if OSHA allows for a weekly testing alternative, it’s not protecting from a grave health risk. It’s only picking up one small slice of time in that week and otherwise allowing for the risk of a Covid+ employee entering the workplace. 12/

I wish @twitter let us edit typos. That’s 6 challenges to ETSs in OSHA’s history, with only 1(!) succeeding.

So there’s no misunderstanding, ANY lawsuit that challenges Biden’s EOs on vaccine mandates or OSHA’s ETS on their constitutionality WILL FAIL. The constitutionality of these measures has been black letter law for over a century, and will not change here. /13