OSHA is reportedly getting ready to issue the vaccine mandate President Biden asked them to create. This action is unprecedented on several levels. Using OSHA’s emergency powers to avoid the administrative law procedures that include a public comment period is dubious at best. To issue an Emergency Temporary Standard, “OSHA must determine that workers are in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards and that an emergency standard is needed to protect them.”
Does COVID-19 meet that standard? The current infection fatality rates (IFR) for Americans under 50 make it difficult to assert that there is grave danger for the majority of the working-age population. As of October 9, the current public health situation, according to the NHCS provisional death counts, the CDC data tracker, and the CDC estimate disease burden, looks like this for the majority of the working-age population:
Does an estimated IFR of 0.07% constitute an emergency for OSHA when the widely cited IFR for the flu is 0.1%, according to the WHO and Dr. Anthony Fauci? Americans 18-49 actually make up a more significant percentage of non-COVID deaths than COVID-related deaths.
The pandemic is also 18 months old with no other emergency standard issued by OSHA. In fact, OSHA basically admits the agency was not authorized to issue standards when it first posted guidance for employers in January, making a clear distinction: These were recommendations, not standards employers were required to follow.
This guidance contains recommendations as well as descriptions of the Occupational Safety and Health Administration’s (OSHA’s) mandatory safety and health standards, the latter of which are clearly labeled throughout as “mandatory OSHA standards.” The recommendations are advisory in nature and informational in content and are intended to assist employers in providing a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.
Every group fighting the mandate at the federal level should be challenging the idea that COVID-19 constitutes an emergency that OSHA has the authority to address.
Further, the General Duty Clause of law that established OSHA puts employers in an impossible position. There are two elements to the employer’s obligation as passed by Congress. According to the Occupational Health and Safety Act, an employer shall:
- Furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;
- Comply with occupational safety and health standards promulgated under this Act.
Problems arise almost immediately if OSHA’s emergency standard mirrors the one for federal employees. The Office of Management and Budget guidelines make it clear the government can deny medical exemptions. If management rejects an exemption request, workers will have two weeks to get the first shot or be subject to disciplinary proceedings. There is also no opportunity for recovered patients to provide proof of infection or a positive antibody test.
The OSHA temporary order will require employers to implement the vaccine mandate under the second requirement of the General Duty Clause. Under the first, they could risk a violation. Gray Television, which owns KXII in Sherman, Texas, is one employer that could find out sooner rather than later. The station fired news anchor Dan Thomas for not getting vaccinated. His doctor refused to provide it because Thomas is allergic to two ingredients in the vaccine. According to a post by his father to raise funds for the young father who just lost his job and health insurance, Thomas also recovered from COVID-19.
The vaccine is a recognized hazard for Thomas, according to his physician. The idea that your employer can compel you to take something you are allergic to is absurd on its face, given the range of severe and deadly reactions that could result. For Thomas, being forced to take a vaccine would create a hazardous work condition, in violation of their first obligation under the OSH Act.
Three large studies in Qatar, Israel, and the United States demonstrate extremely low reinfection rates in recovered patients. More recent data collected by the Israeli Health Ministry during the Delta surge showed that 40% of new COVID patients were vaccinated, while only 1% were patients who had previously recovered. In other words, it’s Thomas’s employer that is posing the “undue hardship,” not the unvaccinated Thomas.
Further, some researchers are arguing that recovered patients should only get one dose, citing severe side effects in patients with some level of existing immunity.
In short, there is no “consensus” on the need for or the risks posed by vaccinating the recovered. Israel, the EU, and other nations consider natural infection the same as vaccination. It’s absurd that the OMB policy, based on CDC guidance, does not recognize these open issues and innate immunity.
Any individual who has recovered or has a medical condition where the risks from the vaccine outweigh the benefits should challenge vaccine mandates under OSHA’s General Duty Clause. The latter group should also consider the Americans with Disabilities Act. It prevents employers from requiring an employee to do something they are medically unable to do if the employee can perform the essential duties of their job.
The OSHA vaccine mandate is nothing more than a fig leaf for a president who vowed to “shut down the virus” when there was no indication it would become anything other than an endemic virus that America would need to learn to live with. The Biden administration over-promised for political purposes and would have to admit defeat to move forward. Biden should not place his political burden on the shoulders of Americans through a bureaucratic order.
*In full disclosure, I am not an attorney. I am a Registered Nurse and have served in leadership positions over OSHA compliance and employment law compliance in Fortune 500 companies for 15 years. The column summarizes the advice I would provide to any CEO or employee group fighting the vaccine mandate based on my knowledge and experience.