Writing yet another column about the COVID-19 pandemic was high on my “To Don’t” list. You may feel the same way about reading another column about the pandemic. Yet, here we are, and we have President Joe Biden to thank or to blame for that (depending on your perspective). Back in December, then President-elect Biden announced his “three-pronged” plan to “defeat” COVID-19, urging Americans to “mask up” for “100 days to make a difference” and to get vaccinated. After more than 200 days of masking and vaccinating didn’t do the trick, Biden announced a new COVID-19 Action Plan. This new plan is a “six-pronged, comprehensive national strategy” to “combat” COVID-19. The most controversial element of this plan is what has been referred to as the vaccine requirement or mandate.
The plan requires “all employers with 100-plus employees to ensure their workers are vaccinated or tested weekly.”
The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact more than 80 million workers in private sector businesses with 100-plus employees.
It’s important to understand that what you just read doesn’t require you (or any employer) to do anything right now. It is not a new law, rule, regulation or standard. The White House has directed OSHA to issue a new rule or standard. This new OSHA rule — an ETS — hasn’t been issued yet. It doesn’t yet exist. Right now, there’s no vaccine mandate or requirement to comply with.
Also, we all know that OSHA doesn’t regulate mining. That’s MSHA’s job, and there’s no mention of MSHA in the president’s new plan. An OSHA ETS won’t apply to mining, miners or mine operators. MSHA already determined that an ETS wasn’t necessary to protect miners from COVID-19, and that was and remains the right decision. So far, the industry has weathered the pandemic remarkably well, and I doubt that MSHA has any desire to issue an ETS that mandates vaccines or testing. It would require a tremendous amount of work at a time when MSHA’s rulemaking focus is on powered haulage and silica, and I can’t imagine that MSHA wants to turn its inspectors into the vaccine police. If a miner refuses to get vaccinated and there’s a shortage of tests, I doubt most MSHA inspectors would want to see or play a role in ensuring that miner is sent home. That’s not what they signed up for.
MSHA continues to encourage miners to get vaccinated, and mine operators and organized labor are doing the same.
That said, we don’t know if the secretary of labor will direct MSHA to issue an ETS that mandates vaccines or testing. If the secretary of labor directs MSHA to issue an ETS, that’s what MSHA will do.
Does all this sound vaguely familiar? Are you thinking that we’ve already been down this road? If so, you’d be right. In January of this year, the president ordered OSHA and MSHA to consider whether any emergency temporary standards on COVID-19 are necessary. OSHA (and MSHA) are authorized to issue an ETS if there’s new, “grave danger” from a new hazard in the workplace, and an ETS is “necessary” to protect workers from that hazard. As I mentioned above, MSHA did as directed and determined an ETS wasn’t necessary to protect miners from COVID-19.
OSHA did the same, and it concluded that an ETS was only necessary to protect certain healthcare workers. OSHA issued an ETS applicable to healthcare in late June. Importantly, it does not require or mandate vaccination. OSHA recognized “the promise of vaccines to protect workers,” but it found that “vaccination has not eliminated the grave danger presented by the…virus to the entire healthcare workforce.”
Just a few months ago then, OSHA declined to require the vaccination of healthcare workers who treat COVID-19 patients. Now, the White House has decided that mandating vaccinations or testing is necessary to protect all employees, and it directed OSHA to make that happen.
The White House called for an ETS applicable to “all employers with 100 or more employees.” It left OSHA to explain how unvaccinated employees who work for an employer with 99 employees aren’t in grave danger while unvaccinated employees who work for an employer with 100 employees are.
Finally, if OSHA issues an ETS that requires vaccines or testing, it will be immediately challenged. OSHA has issued 10 emergency standards since 1971. Six were challenged in court, and OSHA lost five out of those six cases. OSHA might prevail; it has a small chance. However, the smart money will be on the challengers.
Brian Hendrix is a partner with Husch Blackwell. He can be reached at email@example.com.