Rarely used emergency workplace rule is key to Biden’s vaccination plan

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US President Joe Biden’s plan to require more than 100 million Americans to be vaccinated against COVID-19 is based on a rarely used workplace rule with a history of blocking in court, making it an inviting target for legal challenges by employers.

As part of Biden’s plan, unveiled Thursday, private employers with 100 or more employees must ensure their workers are fully immunized or produce a negative COVID-19 test every week.

The measure will be implemented through a Temporary Emergency Standard, or ETS, issued by the Occupational Safety and Health Administration (OSHA) of the United States Department of Labor, which regulates workplaces . The rule is expected in the coming weeks, and it was not clear when it would go into effect.

OSHA can implement an emergency standard when workers are exposed to “serious danger” and the standard is needed to protect them. This allows the agency to shorten the usual process of developing a standard, which takes an average of seven years.

The Republican National Committee and some Republican state governors have already threatened to pursue Biden’s vaccination plan, which also covers most federal employees and contractors, and some healthcare workers.

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While many large employers have said they plan to comply, some companies are also likely to sue.

“Some employers reflexively oppose OSHA,” said Michael Duff, a professor at the University of Wyoming College of Law. “They won’t like this precedent.”

Opponents could argue that a serious danger, which is not defined in law, does not exist nationally, as the current peak in COVID-19 cases has been regional.

Biden said Thursday the country was losing patience with those who refused to be vaccinated, with just over 62% of Americans fully vaccinated against COVID-19.

Cases of the disease remain stubbornly high in the United States, and job growth and other signs of economic health are slowing as hospitals fill up.

“COVID is new and is a serious danger in the workplace. I think the agency is on a solid legal footing here, ”said Debbie Berkowitz, a former senior OSHA official.

There isn’t much precedent for a temporary emergency standard.

Before the pandemic, OSHA issued just nine temporary emergency standards – and the latest was in 1983. Courts blocked or suspended four of them and partially overruled another, according to a Congressional report. Research Service.

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“It’s a rarely used approach,” said Roger King, senior labor and employment adviser for the Arlington, Va., Based nonprofit HR Policy Association, which examines policy issues. public for large employers.

OSHA implemented an ETS in June to combat COVID-19 for healthcare facilities. It was challenged in court by two unions who wanted the standard extended to cover other industries.

The union lawsuit is pending before the United States Court of Appeals for the District of Columbia.

After releasing its emergency standard in June, OSHA invited comments on whether the ETS should become a final rule. The American Hospital Association has urged the withdrawal of the standard, arguing that COVID-19 was not a serious danger on the jobsite, as studies have shown such infections are more likely to occur in the community.

US Secretary of Labor Marty Walsh said in June that the standard targets workers most at risk.

OSHA’s mandate could also be vulnerable to legal challenges as months have passed since vaccines became widely available, and it may be difficult for the agency to explain why there is such a serious danger now, but there wasn’t one earlier this year, said James Sullivan of the law. Cozen O’Connor firm, which represents employers.

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Courts could also conclude that the 100-employee mandate threshold is arbitrary, providing grounds to invalidate the rule, according to Sullivan.

The Biden administration may be hopeful that any defeat in court will come after many employers start complying with the rule and millions of people are vaccinated, Sullivan said.

If employers do not comply, the fines are potentially significant, at $ 14,000 for each employee in violation.

“It could lead to some very nasty math,” said Eric Hobbs, employment lawyer at Ogletree Deakins.

(Reporting by Tom Hals in Wilmington, Delaware, and Dan Wiessner in New York Editing by Noeleen Walder, Cynthia Osterman and Jonathan Oatis)

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