When OSHA announced on Jan. 25 that it had withdrawn its Covid 19 vaccine mandate in the wake of a Supreme Court defeat, it may have seemed to many like that ruling had settled the issue – but that couldn’t be more wrong.
Late last year, at the same time it announced its Emergency Temporary Standard, OSHA also chose to launch a formal rulemaking proceeding aimed at making the ETS into a permanent regulation. On Jan. 26, the agency reported that it was continuing to develop a permanent rule that would accomplish same goals as the ETS that it had withdrawn following the High Court defeat.
Marty Walsh, Secretary of the Department of Labor, of which OSHA is a part, said, “OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the Covid 19 National Emphasis Program and General Duty Clause.”
By pursuing the normally drawn out, step-by-step rulemaking process, OSHA will directly address one of the Supreme Court majority’s objections to the ETS – that it was abruptly declared by administrative fiat instead of being developed like other federal regulations as required by Congress.
All federal agencies are directed to take certain specific steps outlined in the Administrative Procedures Act to create a rule. This includes requirements that allow time for the public to review and comment on each stage in the process.
Over the years, Congress has added other requirements to the APA, including obligations to perform environmental and small business impact studies. A proposed rule only can become a final regulation that an agency can enforce when all of these steps have been completed.
Once the final rule is announced, then it can be challenged in court by those who are impacted by it negatively. In cases where the rules are relatively benign and noncontroversial, this whole process usually takes about six months.If the rule turns out to be controversial, the process can take years. Don’t get me started about the most recent changes made by the Department of Transportation to the truck driver hours-of-service regulations – which took 15 years to complete.
OSHA’s proposed vaccine regulation would address the failure to follow the APA, which was only one concern raised by the 6-3 majority that struck down the ETS. The problem for the agency is that was not the only objection raised by the justices.
It was also noted that the agency’s enabling legislation, the Occupational Safety and Health Act, specifically limits OSHA to addressing injuries and illnesses that arise in the workplace, but not those affecting the public in general, like the flu and off-the-job automobile accidents, for example.
OSHA explicitly declared at the same time it withdrew the temporary standard following the High Court’s rebuke that it is relying on the same rejected ETS to serve as the text of its notice of proposed rulemaking.
Meanwhile, time is growing short for the other governmental testing mandates. A court decision following the Supreme Court’s rejection of the ETS struck down the Biden administration’s decree that all federal employees must submit to the jab.
The government’s requirement that federal contractors and subcontractors force their employees to be vaccinated – representing an estimated one-fifth of the nation’s workforce – is under court review and was stayed before it could be enforced. Legal experts believe the court challenges eventually will succeed and the contractor mandate will be struck down.
It’s not known how long Democrats facing tough elections this fall will continue to back increasingly unpopular Covid regimens. Anti-vax protests by truckers and a grass root parents revolt against classroom masking of school age children may signal to politicians that they need to find their way out of this mess they’ve created.