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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.
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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