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Is OSHA’s Emergency Temporary Standard on vaccination, testing an overreach?

By JOHN. L. HENSHAW 5 min read

On Sept. 9, following the frantic and chaotic withdrawal from Afghanistan, President Joe Biden announced that he asked the Department of Labor/ Occupational Safety and Health Administration to develop a rule requiring large employers to mandate vaccination or require weekly testing for employees not vaccinated. Some believe this was an attempt to divert public attention from the Afghanistan withdrawal and redirect the nation’s focus on the administration’s efforts to control the coronavirus. Asking OSHA to develop such a rule, as it was reported, would be the biggest push by this administration into its campaign to vaccinate the country. On Nov. 5, OSHA announced the publication of its Emergency Temporary Standard (ETS) on COVID-19 Vaccination and Testing, which established binding requirements for private-sector employers employing 100 or more workers.

My focus here is not to opine on the Afghanistan withdrawal or the efficacy of the COVID-19 vaccine. In fact, I wholeheartedly recommend that all eligible citizens get vaccinated to stop the spread of SARS CoV-2. For the sake of all Americans, I also support this administration’s efforts to assure our safety and wellbeing. However, I don’t believe OSHA has the authority to promulgate such a rule as written or should spend its limited resources on public health issues when far too many workplace hazards remain unaddressed.

In 1970, President Richard Nixon signed the Occupational Safety and Health Act. The act created the OSHA within the Department of Labor “… to assure so far as possible every working man and woman in the Nation safe and healthful working conditions …” Congress understood that employers control the ways and means by which work is done in their workplace and authorized OSHA to hold employers accountable for furnishing a place of employment free of recognized workplace hazards that could cause death or physical harm. Congress also authorized OSHA to set mandatory standards such as emergency temporary standards (ETS) where there is substantial evidence that employees are in “grave danger” from exposure to a substance or agent in the workplace and that the ETS is necessary to protect employees from such danger.

While the science continues to develop, substantial evidence does not exist indicating that SARS CoV-2, a public health issue, is a workplace risk or is transmissible in all workplaces employing 100 or more workers. It is reasonable for OSHA to develop workplace standards covering SARS CoV-2 where the virus is part of the work, such as in some healthcare facilities and laboratories. However, requiring vaccinations should be left to the employer who evaluates risks and mitigation strategies that might include vaccinations, specifically for their workplace. It is not reasonable, necessary, or appropriate for OSHA to promulgate a vaccination standard indiscriminately for all private-sector workplaces employing 100 or more workers regardless of whether SARS CoV-2 is a function of that work.

Under the OSH Act, an ETS becomes effective following publication in the Federal Register. OSHA must replace the ETS with a permanent standard within six months of publication. OSHA’s rulemaking process is very onerous, requiring many stages, including public notice and comment, cost-benefit analysis, small business review, to name a few. The fundamental test in rulemaking is whether OSHA, through the Secretary of Labor, acted within the scope of its authority and whether there is substantial evidence that a workplace hazard exists and the standard will eliminate that workplace hazard. None of these tests can be met with this ETS. It is difficult to understand how anyone following OSHA rulemakings could believe a permanent standard, along the lines of this ETS, could be sustained under current law, leaving one to speculate whether a permanent standard was ever contemplated.

As a former OSHA administrator and a safety and health professional, it is hard enough to get some employers to understand and appreciate the value of workplace standards and the direct correlation between the work they require of their workers and the risk of harm resulting from that work. Forcing employers to comply with a vaccination standard not related to workplace hazards is counterproductive and wastes limited resources. It also diminishes our ability to sell the value of OSHA standards and safety and health programs that truly reduce workplace risks associated with the work.

Congress never intended for OSHA to be a public health agency or dwell in public health policy. Those of us who hold OSHA in high esteem expect the agency to focus its limited resources on controlling risks emanating from the workplace or risks created due to that work and not driving public health policy or an administration’s campaign.

When the White House recently announced the publication of the OSHA ETS covering 80 million workers in the private sector, the spokesperson stated that the “Department of Labor was responsible for keeping workers safe.” That is a false statement and assumes more duty on the part of the Department of Labor and OSHA than Congress intended or Americans want. The OSH Act holds employers in the private sector responsible, not a governmental agency, for protecting their workers from recognized hazards. I suppose in state-run industries in communist or socialist countries, one can make that claim, but not in America.

Sanibel resident John L. Henshaw served as assistant secretary of labor for the Occupational Safety and Health Administration from 2001-04.

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