As part of the White House’s aggressive approach to combating the pandemic, President Obama directed the Labor Department’s regulatory agency, Occupational Safety and Health Administration, (OSHA), that all businesses with less than 100 employees must either require them to be vaccinated, or submit to weekly COVID testing.

The agency is authorized to issue an ’emergency temporarily standard’ (ETS), if it can show that workers are in grave danger and the rule is necessary to address it.

A July update to the Congressional report shows how rarely emergency standards are used. The OSHA ETS that were last used in 1983 before the COVID pandemic was overturned by a federal judge. This was because the agency failed to prove that asbestos exposure in the workplace had a significant adverse effect on employees’ lives.

OSHA issued an ETS to protect health care workers against COVID in June. It required hospitals and nursing homes to create a plan for keeping employees safe, improving ventilation, providing adequate PPE, and implementing social distancing or building barriers.

It also requires that relevant companies offer employees paid time off to get vaccinated, or leave in the event of a positive test.

While the idea may be ‘well-intentioned’, a Friday morning editorial claims that Biden is’shredding’ the social fabric of a country already divided by stretching the boundaries of constitutionality.

‘The president should not — and likely does not — have the power to unilaterally compel millions of private sector workers to get vaccinated or risk losing their jobs,’ Republican commentator Robby Soave wrote in the New York Times.

Dan Bowling, a senior lecturer at Duke University, pointed out to McClatchy news that OSHA’s enforcement and investigative capabilities are much more advanced than the IRS or Securities and Exchange Commission.

It’s easy to prove employer liability if someone falls from a ladder that was damaged in a business place and breaks their leg. Bowling said that OSHA would require the employer to report the accident. How can you prove that someone who has COVID is working somewhere that doesn’t follow the vaccine mandate has been proven?

The Republican National Committee as well as governors from at least nine states are some of the parties who are challenging the strict court measure.

Kristi Noem of South Dakota, the Governor, has resisted the implementation of a mask mandate despite the fact that COVID hospitalizations and deaths were amongst the highest in the country. She promised to bring Biden ‘in the courtroom’

Georgia’s Governor. Brian Kemp pledged that he would ‘use every legal option available for the state of Georgia in an effort to stop this blatantly unconstitutional overreach’

However, states like Montana, Texas, and Florida all indicated they plan to sue OSHA. OSHA’s ETS regulations predate similar state guidelines. This would make it more difficult for a state to prove its case than if they created their own OSHA approved regulatory bodies.

What is OSHA?

President Richard Nixon created the Occupational Safety and Health Agency under the Occupational Safety and Health Act 1970.

OSHA has jurisdiction over all private and public workplaces in the country. However, some states have their own OSHA-approved regulatory agencies.

The agency regulates safety and health standards at work. To enforce those standards, the agency is able to conduct unannounced inspections in order to verify compliance.

According to OSHA, the number of workplace deaths has dropped by almost 63 percent since it was created. In 1970, 14,000 workers died on the job. This is 38 per day. However, the number of workers killed on the job in 2018 was 5,250, despite the fact that the US workforce has doubling.

OSHA consults a number of advisory committees that are linked to the Labor and Heath and Human Services Departments. They also consult business owners. OSHA allows for public input for at most 30 days, but often 60 days.

Businesses that are located in states with OSHA-approved agencies can request a “variance” in the rule if it isn’t possible to comply by its effective date.

If the state is subject to federal OSHA supervision, the agency will have the responsibility to work with it to determine if an exemption can be granted

What is an Emergency Temporary Standard?

OSHA can create an ETS to allow it to bypass the public input window and consultation process if it finds that workers are in grave danger from exposure to toxic substances or agents that have been determined to be toxic or physical harmful, or new hazards, and that an emergency standard is required to protect them.

Although emergency standards are effective immediately, they can only be maintained until replaced with a permanent standard.

The proposed permanent standard must be approved by the regular bureaucratic channels within six months.

During that period, the temporary rule can still be challenged in a federal court.

OSHA can issue temporary variance rules to employers who can’t comply with a regulation on time. However, they must show that they have taken all necessary steps to protect workers and provide a roadmap to compliance.

Source: OSHA