Workplace Safety: Another Power Grab by the Feds

 

As if we weren’t fighting back against enough power grabs by the federal government, OSHA is now taking action against states who refuse to comply with their latest Emergency Temporary Standard (ETS):

The U.S. Department of Labor’s Occupational Safety and Health Administration said Oct. 19 that it is moving to relieve Utah, Arizona and South Carolina of their workplace safety oversight because of failure to adopt stricter COVID-19 protection policies, according to The Wall Street Journal and the New York Times.

Federal officials said the three states did not adopt, at minimum, the federal COVID-19 workplace safety plans for healthcare, which OSHA released June 10, the newspapers reported.

My first question is: why is the federal government meddling in state and local standards for the workplace? Haven’t we moved beyond the abuses of the industrial revolution? We certainly have, but that’s not the point. The federal government is not concerned with workplace safety, which every state addresses, but is obsessed with power and control. Now “worker safety” has provided another opportunity to meddle inappropriately and unnecessarily in the business of the states and in our personal lives. And their demands are based on lies.

The ETS issued on June 10 provided, in part, the following explanation for issuing this guidance:

‘Too many of our frontline healthcare workers continue to be at high risk of contracting the coronavirus,’ said U.S. Secretary of Labor Marty Walsh. ‘As I said when I came to the department, we must follow the science. This standard follows the science, and will provide increased protections for those whose health is at heightened risk from coronavirus while they provide us with critical healthcare services. Given the pace of vaccinations, this standard, along with the guidance OSHA, the CDC and other agencies have released, will help us protect frontline healthcare workers and end this pandemic once and for all.’ [italics are mine]

An additional standard was issued for business and industry.

No one takes the time to explain “the science” anymore because if they did, they would have to admit that most of the COVID science is already ancient and useless, particularly in protecting workers. Social distancing, masks, and even the effectiveness of the vaccines have been seriously contested, but the federal government is indifferent. Compliance is their only concern. And the demands on companies, employees, and even customers are insidious and meaningless.

A law firm named Fisher/Phillips has provided a great deal of information to the states, particularly for their Attorneys General, on how to deal with this mandate. These are the actions that have already been taken:

In response to President Biden’s plan, the Attorneys General of 24 states (Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming) penned a September 16 open letter indicating their intent to challenge any vaccine mandate placed on private citizens. In their letter, the Attorneys General laid out their general objections to the rationale of the proposed ETS, as well as their argument that any such standard failed to comply with the OSH Act’s requirements.

Their challenge, as stated, would be premised upon three separate arguments:

  • that the standard of ‘grave danger” to employees is not met;
  • that COVID-19 is not a substance, agent, or hazard under the Act; and
  • grouping employers on the basis of 100 or more employees does not meet the requirement that the standard be necessary to alleviate the danger.

The letter went on to explain that any interpretation that the OSH Act can be read to impute authority on OSHA to mandate vaccines for illnesses existing “in society at large” would violate the Constitution’s preservation of States’ powers to protect the health and welfare of their citizens.

Ordinarily, the Labor Department would have to publish a public notice regarding the change of workplace standards:

Such an ETS can take effect immediately upon publication in the Federal Register – without a typical notice-and-comment period – if the Secretary determines that ‘employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards” and that ‘emergency’ action is necessary ‘to protect employees from such danger.’ This statute further provides that any ETS published shall only serve as a proposed (i.e., “temporary”) rule, and that the Secretary shall act to promulgate this rule as a standard regulation no later than six months after publication.

Anyone who thinks this mandate will be “temporary” doesn’t know the feds.

And one example of OSHA’s argument for “grave danger”—

OSHA’s healthcare ETS was accompanied by a preamble of more than 200 pages, much of which was devoted to the grave danger posed by COVID-19 and the general need for the ETS.

OSHA argued that the dangers from COVID-19 are ‘incurable, permanent, or fatal…as opposed to easily curable and fleeting effects on their health.’ OSHA also discussed that ‘the advent of vaccines does not eliminate the grave danger…in healthcare workplaces where less 100% of the workforce is fully vaccinated,’ due to spread among unvaccinated workers, the risk of breakthrough infection among the vaccinated, and vaccine hesitancy among healthcare workers.

The Attorneys General listed above are challenging this argument, among others.

Their other legal arguments, in summary, are low death rate of COVID-19, high numbers of non-serious COVID cases, limited time impact (six months) of the ETS (which will be further out of date by its deadline regarding the virus’ characteristics), the appropriateness of general applicability to all industries, the arbitrary size of employee groups that are included, questionable justification of cost/benefit considering employee turn-over and testing regimens.

*     *     *     *

The summary included here is extremely helpful in determining the current disposition of the mandate or ETS. One factor, however, concerned me about the law firm providing its final input. From their website, they support several woke causes, including diversity, inclusion and equity. And they ended with this advice:

Despite the obvious legal hurdles that OSHA’s general COVID-19 ETS will face, it would be a mistake for you to assume that you will not be required to comply. Even as you read stories about the lawsuits filed — and even if a circuit court enjoins the ETS nationally — the final word on the ETS will not be heard for some time. A prudent employer should prepare to roll out a mandate or testing regimen, regardless of what you hear. Federal and state OSHA standards regarding COVID-19 are not going away any time soon and are an area that will see rapid changes in both the near and long-term.

I’m not a lawyer, nor am I an employer, but I’d be leery of preparing for their mandate, even in a “testing regimen.” It will be costly and demanding to put a program in place temporarily. And it sounds like a set-up that could lead to forced compliance.

Would you advise state and industry groups to comply in the interim? Or are they better off ignoring the OSHA demands?

I think they should hold their ground and fight.

Published in Domestic Policy
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  1. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    Susan Quinn:

    Would you advise state and industry groups to comply in the interim? Or are they better off ignoring the OSHA demands?

    I think they should hold their ground and fight.

    yes!

    • #1
  2. DonG (CAGW is a hoax) Coolidge
    DonG (CAGW is a hoax)
    @DonG

    Where is my nation-wide injunction by some remote federal judge?

    • #2
  3. Stad Coolidge
    Stad
    @Stad

    Susan Quinn: My first question is: why is the federal government meddling in state and local standards for the workplace? Haven’t we moved beyond the abuses of the industrial revolution? We certainly have, but that’s not the point. The federal government is not concerned with workplace safety, which every state addresses, but are obsessed with power and control.

    OSHA was originally a good thing.  Workers deserved a safe workplace, and the things unions fought for in the early years have been codified (rendering the need for unions obsolete in most cases).

    HOWEVER . . . it’s clear Biden and the left are using existing laws and government entities to extend the reach of govenrment control over every aspect of our lives.  A pox on them . . .

    • #3
  4. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    Stad (View Comment):

    Susan Quinn: My first question is: why is the federal government meddling in state and local standards for the workplace? Haven’t we moved beyond the abuses of the industrial revolution? We certainly have, but that’s not the point. The federal government is not concerned with workplace safety, which every state addresses, but are obsessed with power and control.

    OSHA was originally a good thing. Workers deserved a safe workplace, and the things unions fought for in the early years have been codified (rendering the need for unions obsolete in most cases).

    HOWEVER . . . it’s clear Biden and the left are using existing laws and government entities to extend the reach of govenrment control over every aspect of our lives. A pox on them . . .

    I agree completely! Especially the pox part.

    • #4
  5. Clifford A. Brown Contributor
    Clifford A. Brown
    @CliffordBrown

    Susan Quinn:

    My first question is: why is the federal government meddling in state and local standards for the workplace? Haven’t we moved beyond the abuses of the industrial revolution? We certainly have, but that’s not the point. The federal government is not concerned with workplace safety, which every state addresses, but are obsessed with power and control. Now “worker safety” has provided another opportunity to meddle inappropriately and unnecessarily in the business of the states and in our personal lives. And their demands are based on lies.

    Yes. AND. This has been a long term failure by RepubliCAN’Ts. Congress and the federal courts have lawlessly, unconstitutionally, ceded their responsibilities and powers to effectively unaccountable career bureaucrats. These bureaucrats operate under the false colors of the executive, the President, while actually behaving as a fourth unwritten branch of government.

    No one takes the time to explain “the science” anymore because if they did, they would have to admit that most of the COVID science is already ancient and useless, particularly in protecting workers. Social distancing, masks and even the effectiveness of the vaccines have been seriously contested, but the federal government is indifferent. Compliance is their only concern. And the demands on companies, employees, and even customers are insidious and meaningless.

    Arbitrariness and absurdity is an important feature, not a bug. This is literally 2+2=5. You must be made to actually believe, to accept that 2+2= whatever the regime says today.

    I think they should hold their ground and fight.

    Amen. And both AZ U.S. senators (Sinema and Kelly) must be hammered about the literally demented Xiden regime lawless overreach. And Xi’s senator, McConnell-Chao, should be hammered daily on failure to strictly limit the Administrative State/ Deep State/ regulatory state.

    • #5
  6. Gazpacho Grande' Coolidge
    Gazpacho Grande'
    @ChrisCampion

    This is just another version of the Commerce Clause – basically, we’ll twist something that’s in place to suit whatever need we deem important, at any given time.

    If OSHA was so concerned, where are the regulations on chicken pox, at work?  Meningitis?  Why have their been no testing protocols or vaccine requirements prior to this year?  Did virii just show up in the last year?  

    Why now?

    • #6
  7. Skyler Coolidge
    Skyler
    @Skyler

    “Let’s go” OSHA.

    • #7
  8. Misthiocracy got drunk and Member
    Misthiocracy got drunk and
    @Misthiocracy

    Whenever I get an email and/or phone call from someone wailing that the federal government should step in to stop the provincial governments from going too far, I really want to scream at them, “if the federal government actually had that authority it would punish the provincial governments for not going far enough!”  The US government’s ability to usurp state governments’ authority reminds me that we in the Great White North should be thankful for small mercies.

    • #8
  9. Misthiocracy got drunk and Member
    Misthiocracy got drunk and
    @Misthiocracy

    Stad (View Comment):
    OSHA was originally a good thing.  Workers deserved a safe workplace, and the things unions fought for in the early years have been codified (rendering the need for unions obsolete in most cases).

    And yet, the unions persist.  Better to leave the job to the unions than to create a massive bureaucracy supported by union-financed politicians.

    • #9
  10. Fake John/Jane Galt Coolidge
    Fake John/Jane Galt
    @FakeJohnJaneGalt

    Gazpacho Grande' (View Comment):

    This is just another version of the Commerce Clause – basically, we’ll twist something that’s in place to suit whatever need we deem important, at any given time.

    If OSHA was so concerned, where are the regulations on chicken pox, at work? Meningitis? Why have their been no testing protocols or vaccine requirements prior to this year? Did virii just show up in the last year?

    Why now?

    All that is coming.   In the future those will be required to be employed is you are a citizen.  

    • #10
  11. Full Size Tabby Member
    Full Size Tabby
    @FullSizeTabby

    The number of issues on which the unelected bureaucrat portions of the government in Washington, D.C. (your post specifically calls out OSHA, but we also see the Department of Justice, the Department of Education, the Department of Transportation, and others) usurping the power of state and local governments to run their own affairs is starting to resemble the actions of King George III of about 1772-74 and his ministers preventing the Colonies from running their own affairs. 

    • #11
  12. Misthiocracy got drunk and Member
    Misthiocracy got drunk and
    @Misthiocracy

    Full Size Tabby (View Comment):

    The number of issues on which the unelected bureaucrat portions of the government in Washington, D.C. (your post specifically calls out OSHA, but we also see the Department of Justice, the Department of Education, the Department of Transportation, and others) usurping the power of state and local governments to run their own affairs is starting to resemble the actions of King George III of about 1772-74 and his ministers preventing the Colonies from running their own affairs.

    Starting to?  No. No no no.  This is just more of the same.

    • #12
  13. Skyler Coolidge
    Skyler
    @Skyler

    Misthiocracy got drunk and (View Comment):

    Full Size Tabby (View Comment):

    The number of issues on which the unelected bureaucrat portions of the government in Washington, D.C. (your post specifically calls out OSHA, but we also see the Department of Justice, the Department of Education, the Department of Transportation, and others) usurping the power of state and local governments to run their own affairs is starting to resemble the actions of King George III of about 1772-74 and his ministers preventing the Colonies from running their own affairs.

    Starting to? No. No no no. This is just more of the same.

    Reminds me of the ending of “Animal Farm” when they couldn’t tell the difference between the pigs and the men.

    • #13
  14. Jim McConnell Member
    Jim McConnell
    @JimMcConnell

    Full Size Tabby (View Comment):

    The number of issues on which the unelected bureaucrat portions of the government in Washington, D.C. (your post specifically calls out OSHA, but we also see the Department of Justice, the Department of Education, the Department of Transportation, and others) usurping the power of state and local governments to run their own affairs is starting to resemble the actions of King George III of about 1772-74 and his ministers preventing the Colonies from running their own affairs.

    I was just thinking this morning that we need a new Declaration of Independence, the original doesn’t appear to be working; the citizens vs. Washington, D.C.

    • #14
  15. Full Size Tabby Member
    Full Size Tabby
    @FullSizeTabby

    Jim McConnell (View Comment):

    Full Size Tabby (View Comment):

    The number of issues on which the unelected bureaucrat portions of the government in Washington, D.C. (your post specifically calls out OSHA, but we also see the Department of Justice, the Department of Education, the Department of Transportation, and others) usurping the power of state and local governments to run their own affairs is starting to resemble the actions of King George III of about 1772-74 and his ministers preventing the Colonies from running their own affairs.

    I was just thinking this morning that we need a new Declaration of Independence, the original doesn’t appear to be working; the citizens vs. Washington, D.C.

    I think that the original with its list of specific grievances against King George applies so directly against today’s DC bureaucracy is quite interesting. 

    • #15
  16. Skyler Coolidge
    Skyler
    @Skyler

    Full Size Tabby (View Comment):

    Jim McConnell (View Comment):

    Full Size Tabby (View Comment):

    The number of issues on which the unelected bureaucrat portions of the government in Washington, D.C. (your post specifically calls out OSHA, but we also see the Department of Justice, the Department of Education, the Department of Transportation, and others) usurping the power of state and local governments to run their own affairs is starting to resemble the actions of King George III of about 1772-74 and his ministers preventing the Colonies from running their own affairs.

    I was just thinking this morning that we need a new Declaration of Independence, the original doesn’t appear to be working; the citizens vs. Washington, D.C.

    I think that the original with its list of specific grievances against King George applies so directly against today’s DC bureaucracy is quite interesting.

    The original list of specific grievances mostly pales in comparison to a list we could draft up today.

    • #16
  17. OmegaPaladin Moderator
    OmegaPaladin
    @OmegaPaladin

    @susanquinn  –  I read the ETS, and the standard does not require workers to be vaccinated.   I read it specifically looking for a vaccine requirement, and it actually recognizes natural immunity (thought only for for 3 months)  It’s basically a mask / social distancing / health surveillance standard that could have been issued in June 2020, not June 2021.  It’s only requiring workers to be given sick leave for vaccination complications, which seems to be an overreach and undue burden on employers, but it is not a vaccine mandate.

    The ETS actually mandates a surgical mask, not other masks which are more effective. (relatively speaking)

    • #17
  18. Skyler Coolidge
    Skyler
    @Skyler

    Joe Biden to government contractors:  

     

    • #18
  19. Gazpacho Grande' Coolidge
    Gazpacho Grande'
    @ChrisCampion

    Fake John/Jane Galt (View Comment):

    Gazpacho Grande’ (View Comment):

    This is just another version of the Commerce Clause – basically, we’ll twist something that’s in place to suit whatever need we deem important, at any given time.

    If OSHA was so concerned, where are the regulations on chicken pox, at work? Meningitis? Why have their been no testing protocols or vaccine requirements prior to this year? Did virii just show up in the last year?

    Why now?

    All that is coming. In the future those will be required to be employed is you are a citizen.

    Citizen reporting for duty, sir!

     

    See the source image

    • #19
  20. Gazpacho Grande' Coolidge
    Gazpacho Grande'
    @ChrisCampion

    Skyler (View Comment):

    Full Size Tabby (View Comment):

    Jim McConnell (View Comment):

    Full Size Tabby (View Comment):

    The number of issues on which the unelected bureaucrat portions of the government in Washington, D.C. (your post specifically calls out OSHA, but we also see the Department of Justice, the Department of Education, the Department of Transportation, and others) usurping the power of state and local governments to run their own affairs is starting to resemble the actions of King George III of about 1772-74 and his ministers preventing the Colonies from running their own affairs.

    I was just thinking this morning that we need a new Declaration of Independence, the original doesn’t appear to be working; the citizens vs. Washington, D.C.

    I think that the original with its list of specific grievances against King George applies so directly against today’s DC bureaucracy is quite interesting.

    The original list of specific grievances mostly pales in comparison to a list we could draft up today.

    Sounds a lot more like Festivus than revolution.

    See the source image

    • #20
  21. Gazpacho Grande' Coolidge
    Gazpacho Grande'
    @ChrisCampion

    Skyler (View Comment):

    Joe Biden to government contractors:

     

    Everybody needs to get paid, but I’m not sure if Joe realizes how much of the work is outsourced to contractors.  Meaning if they refuse or slow roll compliance, or people quit, the government’s ongoing deliverables are impacted.  This includes big stuff for the DoD, NASA, a couple quadrillion other things.

    Gov’t literally can’t do this stuff on its own.  It hires people to do it for them.

    • #21
  22. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    OmegaPaladin (View Comment):

    @ susanquinn – I read the ETS, and the standard does not require workers to be vaccinated. I read it specifically looking for a vaccine requirement, and it actually recognizes natural immunity (thought only for for 3 months) It’s basically a mask / social distancing / health surveillance standard that could have been issued in June 2020, not June 2021. It’s only requiring workers to be given sick leave for vaccination complications, which seems to be an overreach and undue burden on employers, but it is not a vaccine mandate.

    The ETS actually mandates a surgical mask, not other masks which are more effective. (relatively speaking)

    Thank you for your comment, @omegapaladin, which is technically correct. ETS#1 only addresses masks and doesn’t include mandatory vaccines. Biden has directed OSHA, however, to write an ETS#2, which will be mandatory, which they expect to release soon:

    President Biden directed OSHA to issue an Emergency Temporary Standard (ETS #2) to require all employers with 100 or more employees to ensure their workers are vaccinated or tested weekly.  This will be the second ETS issued by OSHA since the onset of the pandemic:  the first ETS (ETS #1) is applicable to health care employers and those with health care services within their places of employment. ETS #1 is set to expire on December 31, 2021.

    Draft regulations have not been released, and neither President Biden nor OSHA have provided any specific details; although during a recent Q&A Session with the Solicitor of Labor, Seema Nanda (the top attorney responsible for enforcement actions of OSHA regulations), OSHA representatives did state that they expect the release within “the coming weeks.” Once issued, ETS #2 could become effective almost immediately. At this point, there is no guidance on whether employers must pay for the vaccinations and the tests, or how OSHA will enforce the ETS.

    • #22
  23. Full Size Tabby Member
    Full Size Tabby
    @FullSizeTabby

    Susan Quinn (View Comment):

    OmegaPaladin (View Comment):

    @ susanquinn – I read the ETS, and the standard does not require workers to be vaccinated. I read it specifically looking for a vaccine requirement, and it actually recognizes natural immunity (thought only for for 3 months) It’s basically a mask / social distancing / health surveillance standard that could have been issued in June 2020, not June 2021. It’s only requiring workers to be given sick leave for vaccination complications, which seems to be an overreach and undue burden on employers, but it is not a vaccine mandate.

    The ETS actually mandates a surgical mask, not other masks which are more effective. (relatively speaking)

    Thank you for your comment, @ omegapaladin, which is technically correct. ETS#1 only addresses masks and doesn’t include mandatory vaccines. Biden has directed OSHA, however, to write an ETS#2, which will be mandatory, which they expect to release soon:

    President Biden directed OSHA to issue an Emergency Temporary Standard (ETS #2) to require all employers with 100 or more employees to ensure their workers are vaccinated or tested weekly. This will be the second ETS issued by OSHA since the onset of the pandemic: the first ETS (ETS #1) is applicable to health care employers and those with health care services within their places of employment. ETS #1 is set to expire on December 31, 2021.

    Draft regulations have not been released, and neither President Biden nor OSHA have provided any specific details; although during a recent Q&A Session with the Solicitor of Labor, Seema Nanda (the top attorney responsible for enforcement actions of OSHA regulations), OSHA representatives did state that they expect the release within “the coming weeks.” Once issued, ETS #2 could become effective almost immediately. At this point, there is no guidance on whether employers must pay for the vaccinations and the tests, or how OSHA will enforce the ETS.

    I am less concerned about the details of the orders than the general fact that the federal (national) government is intruding into areas that are outside its authorized realm, and are properly the realm of the state and local governments. 

    • #23
  24. Fake John/Jane Galt Coolidge
    Fake John/Jane Galt
    @FakeJohnJaneGalt

    Full Size Tabby (View Comment):

    Susan Quinn (View Comment):

    OmegaPaladin (View Comment):

    @ susanquinn – I read the ETS, and the standard does not require workers to be vaccinated. I read it specifically looking for a vaccine requirement, and it actually recognizes natural immunity (thought only for for 3 months) It’s basically a mask / social distancing / health surveillance standard that could have been issued in June 2020, not June 2021. It’s only requiring workers to be given sick leave for vaccination complications, which seems to be an overreach and undue burden on employers, but it is not a vaccine mandate.

    The ETS actually mandates a surgical mask, not other masks which are more effective. (relatively speaking)

    Thank you for your comment, @ omegapaladin, which is technically correct. ETS#1 only addresses masks and doesn’t include mandatory vaccines. Biden has directed OSHA, however, to write an ETS#2, which will be mandatory, which they expect to release soon:

    President Biden directed OSHA to issue an Emergency Temporary Standard (ETS #2) to require all employers with 100 or more employees to ensure their workers are vaccinated or tested weekly. This will be the second ETS issued by OSHA since the onset of the pandemic: the first ETS (ETS #1) is applicable to health care employers and those with health care services within their places of employment. ETS #1 is set to expire on December 31, 2021.

    Draft regulations have not been released, and neither President Biden nor OSHA have provided any specific details; although during a recent Q&A Session with the Solicitor of Labor, Seema Nanda (the top attorney responsible for enforcement actions of OSHA regulations), OSHA representatives did state that they expect the release within “the coming weeks.” Once issued, ETS #2 could become effective almost immediately. At this point, there is no guidance on whether employers must pay for the vaccinations and the tests, or how OSHA will enforce the ETS.

    I am less concerned about the details of the orders than the general fact that the federal (national) government is intruding into areas that are outside its authorized realm, and are properly the realm of the state and local governments.

    That is not how people see things.  Most people view the government as the government and it can do what it wants 

    • #24
  25. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    Full Size Tabby (View Comment):
    am less concerned about the details of the orders than the general fact that the federal (national) government is intruding into areas that are outside its authorized realm, and are properly the realm of the state and local governments. 

    I thought I’d communicated that

     “I  think they should hold their ground and fight.”

     

     

     

    • #25