I strongly favor Biden's employer vax mandate. I'm also curious about how vulnerable it might be to legal challenges, whenever it comes out. OSHA legal experts I've spoken to suggest that there's some uncertainty about this question, particularly with a more conservative court🧵
Issue is less whether OSHA has jurisdiction to mandate vaccines -- probably it does, though that'll be challenged too -- and more whether the vax/testing requirement can be done by issuing an "emergency temporary standard" (ETS)
"Emergency temporary standard" means fast-tracking rule so it can be put into effect right away, rather than going through the usual, protracted "notice-and-comment" process. For OSHA, that usual regulatory process can take years or even decades (way too slow for delta)
OSHA can issue an emergency temporary standard if doing so is “necessary to protect workers from grave danger” and/or there's a "new hazard." Quite arguably the case with delta! Still a high legal threshold to clear.
OSHA has used this authority only 10x in its history.
OSHA has used this authority only 10x in its history.
Prior to June, OSHA had last used this authority in 1983. It was challenged in court and struck down. In fact 6 of the 10 emergency temporary standards issued over the years have been challenged; of those 6, only one was allowed to go into effect (in 1978) news.bloomberglaw.com/daily-labor-re…
One argument plaintiff might make is: if it's truly a "grave danger" for workers, why exempt firms with <100 employees? Historically, OSHA hasn't exempted small businesses from health & safety regs, only record-keeping, b/c they argue hazards are hazards, regardless of firm size
Other Q's that might get raised (depending on what rule ultimately says, since it doesn't exist yet):
*Who will bear the costs of the rule? (Will employers have to pay for all that weekly surveillance testing?)
*What about remote workers - if not exempted, is rule overbroad?
*Who will bear the costs of the rule? (Will employers have to pay for all that weekly surveillance testing?)
*What about remote workers - if not exempted, is rule overbroad?
Experts I've talked to so far generally seem to think the forthcoming rule as described would stick, but it's hard to know given
A) past successful challenges to ETS's (now very old at this point)
B) conservative SCOTUS
C) what if courts "stay" the reg in the mean time?
A) past successful challenges to ETS's (now very old at this point)
B) conservative SCOTUS
C) what if courts "stay" the reg in the mean time?
Still reporting this out. If you have insight (or think I've assessed the legal risks incorrectly) feel free to drop me a note at crampell@washpost.com
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