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OSHA will try a different route to a vaccine mandate for businesses

Image of a gloved hand holding a cotton ball to a person's arm.

On Tuesday, the Occupational Safety and Health Administration (OSHA) announced that it was withdrawing its planned vaccine mandate for businesses with 100 or more employees. The decision comes in the wake of a Supreme Court ruling that blocked OSHA from implementing the mandate while lawsuits opposing it made their way through the lower courts.

But the agency also indicated that it is still working on getting the mandate instituted via a completely different, albeit slower, mechanism.

OSHA’s initial attempt to implement a vaccine mandate was done under a clause of US law that allows the agency to issue temporary emergency standards in response to “new hazards.” Reasoning that SARS-CoV-2 represents a new hazard, the emergency standard would require vaccination or testing and apply to companies with 100 or more employees, provided those employees were not consistently working outdoors.

A number of states and business organizations sued to block this emergency standard. Lower courts allowed the mandate to go into effect while those suits proceeded, but the Supreme Court blocked it via a mixed decision. The three liberal justices would have let the OSHA mandate go through, while three of the court’s six conservative justices argued that the mandate needed to be blocked because the US Constitution doesn’t allow Congress to delegate that sort of power to an agency. The three remaining conservatives blocked the mandate but allowed that a more narrowly focused version might pass muster.

The six votes for blocking the rule indicated to pretty much everyone, including OSHA leadership, that the emergency mandate would not survive if it ever came back before the Supreme Court—which it was certain to do if it survived the lower-court decisions. As a result, the agency said that the rule will be formally withdrawn as of tomorrow.

But that doesn’t mean OSHA is giving up entirely. In addition to the law that enables the agency to issue temporary emergency standards, Congress has given OSHA the statutory ability to set workplace safety standards through the standard federal rule-making process. This process involves publishing draft rules in the Federal Register, soliciting public feedback, and formulating a formal rule taking that feedback into account.

The process is much slower and will likely take most of the year to complete. But critically, the language of the law enabling this process is completely different, so the recent court ruling will not apply to it. That’s not to say the same justices won’t find different reasons to block the rule, just that it’s more likely to survive than the emergency standard, given the recent decision.

In the meantime, OSHA’s statement on the matter ends by noting that the agency “strongly encourages vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.”

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