Looking for an In-Depth Analysis of the OSHA Vaccine Rule? Here It Is.

Two months ago, when the White House announced that OSHA would be issuing a rule requring employers with 100+ employees to ensure their employees were vaccinated, I drafted a post here where I stated: "I am not the greatest when it comes to picking fantasy football players or horses in Saratoga. But I do know a thing or two about OSHA and federal rulemaking. And if this rule actually goes into effect, I will eat my hat."

After spending several hours reading the 490-page rule, I stand by that statement.

As an initial matter, if you are looking for details of what the rule seeks to require, my colleagues have drafted an excellent summary here: https://www.bsk.com/news-events-videos/osha-rsquo-s-vax-or-test-emergency-temporary-standard-ets-is-here

However, I have been asked many times over the past two months: will this rule go into effect at all? My prediction is still no. Expanding on my previous analysis, here is why:

Challenge to the Emergency Rulemaking Process

Congress can delegate its lawmaking authority to agencies it creates, by passing a law (like the Occupational Safety and Health Act of 1970, or "OSH Act") that empowers the agency to issue certain rules in accordance with that law. Most rules are subject to notice-and-comment rulemaking, where the agency first issues a proposed rule, allows the public to comment, and then issues a final rule. OSHA can issue "emergency" standards under certain circumstances. Under the OSH Act, an immediate emergency standard can only be issued when such a standard is “necessary” to protect employees from “grave danger,” and there is not sufficient time for notice-and-comment rulemaking. Several suits have already been filed against the rule, with many more on the way. And the first question in these challenges will be: was it necessary to forego normal notice-and-comment rulemaking and issue this emergency standard to protect employees from grave danger?

1. The vaccines have been around for almost a year. OSHA could have engaged in notice-and-comment rulemaking in late 2020 or early 2021, and a final rule could have already been in effect by now--so it is difficult for OSHA to argue that its only option was emergency rulemaking. In addition, the vaccination-or-test option doesn't go into effect until January 4, 2022, so there is a grave danger requiring an emergency regulation--yet it doesn't go into effect for 60 days?
2. OSHA concludes that all employees in the country who are not fully vaccinated are in grave danger of death or serious physical harm, necessitating this rule, yet -

• OSHA does not consider that employees who have received one dose of a two-dose regimen have significantly increased protection from COVID;
• OSHA considers protection from natural immunity, but ultimately concludes the evidence is "insufficient" to conclude anyone who previously had COVID now has increased protection; and
• Amazingly, this vaccination or testing standard does not apply to the employees most at risk of COVID exposure: those employees subject to OSHA's Healthcare ETS. OSHA specifically states this ETS does not apply to those workplaces covered by OSHA's previously Healthcare ETS, finding that those employees are not in grave danger. Yet at the same time, OSHA states that once the Healthcare ETS expires (which it must by December 21, six months after its effective date), those healthcare employees will be in grave danger. Simply put, those healthcare employees will not be in grave danger on December 20, but will be in danger on December 21. If that is not the definition of arbitrary and capricious decisionmaking, I do not know what is.
• (In the same manner, OSHA tries to square a circle in explaining why it didn't require a mandatory vaccination or testing policy in its Healthcare ETS for workplaces where COVID-positive patients are expected or treated, yet now is requiring such a policy for all large workplaces.)

3. Last, it will be difficult for OSHA to argue that there is a grave danger to all unvaccinated employees in the country, yet it is not protecting employees at employers with less than 100 employees from this grave danger. OSHA's main argument here is that this rule could be an "undue disruption" to smaller workplaces, but if this is such a grave danger to 1/3 of the American workforce, then the undue disruption should not be an issue in comparison.

Challenge to the Federal Government's Ability to Issue Any Such Rule, Even Not On an Emergency Basis

Whereas the first issue above concerns OSHA's?method?of issuing the rule - emergency rulemaking versus notice-and-comment rulemaking - the second issue will be?whether OSHA has the power at all?to issue such a rule.

1. Because OSHA's rulemaking power is limited to only the authority delegated to it by Congress, the courts will consider whether Congress has the power to pass a law that effectively requires the vaccination of two-thirds of working adults in the country who work for employers with 100 or more employees. And it's quite possible that the courts may say that Congress does not have this power; its powers are limited solely to the enumerated powers set forth in Article I, Section 8 of the Constitution. While it is possible that the Administration may be successful in arguing that this falls within the Commerce Clause powers of Congress, it is just as possible that the courts find that the scope of this rule goes more to the general police powers of the states to pass laws for the health of their citizens, and thus a power reserved to the states and not a power of Congress.
2. Even if the courts do find that Congress has this power, the courts must also find that Congress?specifically delegated?such power to OSHA in 1970 when it passed the OSH Act. The ability of Congress to delegate legislative power to an agency is broad, but not limitless - it must express an "intelligible principle" for the agency to follow. As the late Justice Antonin Scalia famously said, "Congress does not hide elephants in mouseholes." Did did the OSH Act really allow OSHA to issue a rule that requires vaccination of employees? Time will tell.

Challenge to the Costs Imposed By the Rule

This rule literally imposes billions of dollars of costs on employers and employees:

1. The rule requires employers to furnish four hours of paid time to employees for each vaccination, and up to two days of paid time for each adverse reaction to vaccination. This raises two issues. First, the cost itself, which OSHA estimates to be about $1.9 billion to U.S. employers over the six-month period of the rule. But second, does the OSH Act give OSHA the power to order employers to pay employees for time off for vaccination and recovery? The purpose of the OSH Act was to establish OSHA to ensure that the national workforce has "safe and healthful working conditions." But it is the Wage and Hour Division of the U.S. Department of Labor, established by the Fair Labor Standards Act of 1938, that establishes rules regarding payment of wages to employees. Thus, even if the courts find that it was acceptable to pass the rule on an emergency basis, and that OSHA has the authority to pass a rule requring vaccination of employees, it may still find the rule unlawful in requiring employers to pay employees for time off to get vaccinated, and for recovery time.
2. Second, OSHA decided that employers do not have to pay for the costs of weekly testing--and because OSHA only has to calculate costs on employers, and not employees, this decision allowed OSHA not to include any discussion of the cost on employees in this rule. OSHA estimates that 8.9 million employees covered by the rule will decide to remain unvaccinated--yet then estimates that only 6.3 million employees covered by the rule will require weekly testing. Even by that number, 6.3 million employees getting a $12 over-the-counter test per week adds up to $2 billion dollars of costs imposed on employees over the six-month period of the rule. There is simply no authority in the OSH Act (and likely also in Article I, Section 8 of the Constitution) to impose such a cost on people simply because they are in the workforce.

Summary

Forecasting the outcome of litigation is obviously not an exact science, so I wouldn't go running off to Vegas looking for a bookie who has odds on the litigation. But if I were a betting man--and as I live in the horse-racing capital of the country, I most certainly am--I would not bet on this rule going into effect.