The federal Occupational Safety and Health Administration is set to issue temporary emergency rules in the coming weeks or months to guide President Biden’s COVID-19 vaccine mandate. Biden’s directive requires a COVID-19 vaccine or weekly testing among employees at companies with 100 workers or more — roughly two-thirds of the U.S. workforce.
Biden directed OSHA to promulgate rules for what’s known as an emergency temporary standard that would take effect immediately to protect worker safety from a “grave danger,” in this case the COVID-19 pandemic.
The emergency rules will add one more burden to employers that have been hit with many challenges since the pandemic’s outbreak in early 2020.
Or maybe it won’t.
The pending OSHA emergency rules will almost certainly become the subject of a court challenge. Attorneys general in about 20 states quickly pledged a court challenge to Biden’s order. Business organizations are sure to join them.
Their chances of success? As attorney Jon Kok points out: Court challenges have successfully halted emergency OSHA rules five of the six times they’ve been issued. The last instance was in 1983 and was related to asbestos.
None of the six court challenges involved mandating vaccines, which should provide new legal ground for the federal courts to plow.
“OSHA’s never gotten into the vaccine business before,” said Kok, a partner at Warner Norcross + Judd LLP in Grand Rapids who co-chairs the law firm’s Labor and Employment Group. “This is new territory for them.”
The lack of a public review and comment period in the emergency rulemaking process will likely be among the legal points that opponents raise. OSHA rules typically involve a “very lengthy” process that can take years, Kok said. In this instance, OSHA seeks to have emergency rules in place in mere weeks.
Historically, federal courts have held a skeptical view of temporary emergency regulations because “it bypasses so much of the rulemaking process,” Kok said.
Whether the pending emergency rules can withstand the inevitable court challenge is among the many questions that Kok’s clients have asked since the Sept. 9 order.
“‘Is this actually going to happen?’ That is certainly an open question. I think there is a very good chance that it does get stopped,” Kok said in a recent interview. “The federal government is going to have to prove in this standard that there is a ‘grave danger’ to worker safety. Now what exactly that means might be in the eye of a judge, but it’s a fairly high standard.”
In issuing the order, Biden “is taking a very aggressive stance on this issue,” even though he and his advisers know “it may never come to pass,” Kok said. The president’s stated goal is to get as many people as possible vaccinated against COVID-19, which has killed about 680,000 people in the U.S. since early 2020.
Another key unanswered question among employers is who would pay for the weekly testing. The answer may come with the OSHA emergency rules, Kok said.
Kok has also received questions from clients with multiple workplaces on what actually constitutes 100 employees. OSHA has already indicated that the threshold is based on total employment across all of a company’s locations, he said.
For example, a company with 25 employees in Michigan, 50 in Indiana and 30 in Missouri is expected to fall under the mandate, Kok said.
The U.S. Department of Labor also has indicated that OSHA’s emergency rules probably wouldn’t cover people who are working remotely at home.
‘Don’t get caught off guard’
For employers anxiously awaiting the OSHA rules, Kok advises to be proactive and prepare should the emergency rules withstand a court challenge and take effect — whether that’s later this year or in 2022.
“Don’t be caught off guard. Make sure you’re starting to develop procedures to comply with this should it come to pass,” Kok said. “How are we going to gather this information? Where are we going to record it? Who’s going to be responsible for that? And also think about if this happens: Are you going to do the dual approach of either you get vaccinated or you get tested? Or are you … just going to mandate (vaccinations)? That’s the conversation employers can and should have right now on which direction they want to go.”
Moreover, employers are worried that a federal vaccine mandate could cost them workers in an already tight labor market where talent has proven scarce.
While “not everybody is so wedded to their belief structure that they are willing to lose their job,” some employees will refuse to get vaccinated, Kok said. That will put employers in a tough position if they opt against testing by either risking an OSHA investigation and fine, or choose to terminate unvaccinated employees, Kok said.
“That, frankly and unfortunately, is going to be the position that a lot of companies are going to be in,” Kok said. “This is not good news for them at all because they know it’s going to deplete their workforce.”
Should that scenario play out, employers can at least blame the president. Kok notes that federal law already allows employers to mandate vaccines in the workplace. Should the pending OSHA emergency rules survive a court challenge and go into effect, Biden’s order at least allows them to deflect blame.
“Employers can say: ‘Blame the federal government and not me,’” Kok said. “Some employers have been on the fence about mandating. Now the federal government’s basically requiring it.”