Published by The Lawfare Institute
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The president wants you to get vaccinated. While the White House has indicated that a nationwide vaccine mandate is not forthcoming, President Biden is using mandates for certain groups. So far he’s required federal employees, the military and federal contractors to get vaccinated. In early September, Biden used the bully pulpit to praise the vaccinated for “doing the right thing” and implored the unvaccinated to get the jab. He also announced that the U.S. Department of Labor was developing a rule for employers with 100 or more employees to require those employees to get vaccinated, face weekly testing, or—presumably—lose their jobs. It’s been more than a month since that announcement, and we have not seen the rule yet, though many people are acting like it’s already in effect.
What’s the status of this rule? And why did Biden announce it if it wasn’t ready for prime time? The answer might be that the rule is challenging to write—it faces steep legal and practical challenges—and that, in the meantime, the president’s announcement provides useful cover for employers to require vaccines and help drive up vaccination rates.
The day after Biden’s announcement, White House press secretary Jen Psaki fielded a question about when the rule would be issued. When pressed on the exact timing of the rule, Psaki responded, “I don’t have an estimation for you today, but there’s clearly an urgency here, and we want to ensure that rulemaking proceeds rapidly, as quickly as possible.” While some observers might believe that Biden’s earlier statement makes the vaccination rule a fait accompli, those types of announcements are often just the beginning of a policy process. It takes time for federal agencies to write rules. Most rules are governed by the Administrative Procedure Act (APA), which requires a deliberate set of bureaucratic steps to ensure that the agency makes careful, reasoned decisions, including an opportunity for the public to comment on proposed rules before they can go into effect. Agencies are generally required to write explanations for their proposed rules that can be hundreds or even thousands of pages long; those materials are made available to the public for a set number of days—often 30 or 60 days; and then agencies are required to consider the public comments they’ve received before they can finalize their rules. Proposed and final rules that have a high degree of economic or policy significance also make a stop in the White House for review by the Office of Information and Regulatory Affairs (OIRA) before they are published. In certain circumstances, this whole process can happen rather quickly, but it often takes several years to develop and implement a rule. Once a final rule is published, there’s usually a delayed effective date to give the public time to prepare to implement the rule (such as training staff, creating forms and other workflow considerations) before it becomes law.
The employer vaccination rule is being drafted by the Occupational Safety and Health Administration (OSHA), which is part of the Labor Department. OSHA oversees workplace safety, and it is somewhat unusual in that its rules can take an especially long time to come out, compared to other agencies’ rules. But for a rule as urgent as the vaccination requirement, it is expected that OSHA will use its authority to issue an emergency temporary standard (ETS) for the mandate. That authority will allow the process to move quickly, but exactly how quickly is not clear.
When Congress created OSHA in 1970, it gave the agency a shortcut to issue an emergency temporary standard when the secretary of labor 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 the standard “is necessary to protect employees from such danger.” Under the law, an ETS can go into effect on the day it is published, and OSHA has six months to follow up with a final version of the standard.
Absent a shortcut like this, OSHA would have to comply with the ordinary APA process explained above: publishing a proposed rule, taking public comment and then publishing a final rule with a delayed effective date. The APA does allow agencies to set aside these requirements for “good cause,” but Congress gave OSHA a more exacting test to meet to issue an ETS.
In the 1970s, OSHA reached for its ETS authority several times to tackle a slew of workplace conditions related mostly to the presence or use of certain substances such as asbestos or benzene. Litigation ensued, and the courts stayed a number of OSHA’s early actions. Following a 1983 decision striking down a rule on asbestos, OSHA appeared to have set aside its ETS authority. This posture continued even in the face of the coronavirus pandemic, despite pleas and even litigation to get OSHA to use an ETS to help shape the U.S. response.
This posture shifted when President Biden took office in January 2021. On his second day in office, Biden ordered the Labor Department to consider using an ETS by March 15 to establish a workplace mask mandate. That deadline came and went. Meanwhile, the facts on the ground kept changing. Back then, vaccination rates were rising; spring had arrived, which meant people could expect to be outdoors more often; and the delta variant was not yet known to be in the U.S. Drafting a rule requires an agency to assess the status quo to formulate an appropriate rule, but when the status quo keeps changing, it can be hard for an agency to make its case for why a rule is needed. In June, OSHA finally issued an ETS with controls for workplace safety in health care settings such as hospitals and nursing homes, including a mask mandate. A more comprehensive rule that would have applied to a broad set of workplaces was considered but ultimately scrapped. Nonetheless, the resulting rule was more narrow than what might have been expected, but OSHA’s use of the ETS authority for the first time since 1983 was still a remarkable step. Litigation followed quickly, with labor groups arguing that the ETS did not go far enough.
Now OSHA is busy building a new ETS, one that includes a workplace vaccine mandate. This is taking place amid much larger policy debates about the government’s role in protecting both individual liberty and public health. Setting aside the political challenges associated with a vaccine mandate in the U.S., OSHA faces several challenges to construct an ETS that can withstand the scrutiny it surely will draw. The situation is very fluid, the legal standard is tricky and implementation questions abound.
First, the facts on the ground continue to evolve in this pandemic. Vaccination rates are one example. For much of the time when OSHA was under pressure to issue an ETS in the Trump administration, the U.S. didn’t yet have vaccines developed or approved. Now, multiple vaccines exist and vaccination rates continue to creep upward. This is due to a host of factors outside of OSHA’s control, and it may interfere with OSHA’s argument that a workplace mandate is necessary. If OSHA fails to meet that standard, the ETS will be in legal jeopardy. Such a shift in vaccination rates would make it hard for any regulator to craft a sensible pandemic policy response. For a regulator that usually takes a very long time to issue ordinary rules, this might be especially challenging. And, while OSHA might ultimately be confident in its argument, others in the Labor Department, Justice Department, and the White House might have different views about the best way to structure the rule.
Second, in addition to a wide range of potential constitutional challenges, OSHA must contend with its own statute. The Occupational Safety and Health Act requires OSHA to demonstrate that an ETS is the necessary response to a “grave danger” in the workplace. As Jonathan Adler and Lindsay Wiley have pointed out, the nexus to the workplace needs to be very clear; OSHA’s authority covers workplace health and safety in particular, rather than public health in general. The fact that the rule will apply only to workplaces with 100 or more employees may also present complications. With the thin state of contact tracing, the government may struggle to amass data establishing that all workplaces with 100 or more employees meet the “grave danger” threshold. There is also an inherently arbitrary aspect to the 100-employee threshold announced by the president, which may make it hard for OSHA to justify that the rule is able to withstand judicial scrutiny under the APA, which requires that agency rules not be “arbitrary and capricious.” For instance, in terms of coronavirus exposure risk, an employer with two employees in each state is surely different from one with 100 employees working in close proximity in a single building. If it sticks with the 100-person threshold, OSHA will need to find a way around that major obstacle.
Third, once the rule is out, implementation will be difficult. OSHA will need to be ready to give guidance to employers and employees on a number of questions, such as how to handle requests for religious, health-related, or post-COVID-19 natural immunity exemptions; what the consequences of failing to get vaccinated must be (termination, leave without pay); how to apply the rule when resulting staff shortages could create new public health or safety problems; who pays for and organizes any accompanying testing regime; who is liable for the small number of complications that may arise due to someone taking a vaccine as a result of the mandate; and so on. Figuring out the federal response to questions like these—which most observers would agree are issues that should be settled before the rule comes out—can take some time, but time is exactly what OSHA doesn’t have when trying to argue that this is an emergency. Enforcement is also a key question: What is OSHA prepared to do if employers flout the rule?
When he announced the forthcoming rule, Biden noted that some companies are already requiring these measures. The Business Roundtable announced its immediate support of such a mandate. Speaking the next day, Psaki said that “[o]ur expectation and hope is [employers] will take these steps on their own, and then we will continue to implement for those who are not complying.”
Some employers were relieved to have cover to require vaccines, even as they grappled with how to make it happen. The irony, of course, is that as more employers and employees comply with a workplace vaccine mandate that doesn’t exist yet, the factual basis for needing the ETS takes a hit.
The result is that this rule is being issued in a counterintuitive dynamic. Most people wait for the ink to dry on a rule before they comply with it. In this case, OSHA is racing to catch up. From a public health perspective, however, announcing an emergency rule and encouraging employers and employees to come along, while still putting it through its proper paces, might be the most effective strategic choice to get more people vaccinated in the near term. After all, an ETS that has not been issued is an ETS that cannot yet be challenged in court. It also stalls the government’s need to answer implementation questions.
OSHA sent its draft rule to OIRA on Oct. 12. That kicked off a review process that will take an uncertain amount of time; OIRA review can take days or weeks or longer. In the meantime, sending the rule to OIRA was a big milestone for the ETS and a signal to employers and employees to continue to prepare; for what exactly, we will have to wait to see.