katv | OSHA has been working quietly behind the scenes on an emergency
temporary standard that can stand up to legal challenges. Their
strongest position will be establishing the need for a mandate to
protect employees against the "grave danger" of COVID-19.
"OSHA is very aware this is something that's being looked at with tremendous scrutiny," said Helen Rella, an employment attorney with Wilk Auslander. The more clearly the agency is able to articulate the dangers of COVID and provide detailed steps to mitigate it, the stronger its position against constitutional challenges.
"They are going to anticipate ... challenges and they want to head that off at the pass," Rella said, predicting the final emergency temporary standard will be very detailed.
Already, 24 Republican-led states have announced plans to sue the
Biden administration over the vaccine and testing mandate. The
Republican attorneys general expressed skepticism
that OSHA could "meet the high burden" of proving most employees are in
"grave danger." They argued that younger workers have a lower risk of
hospitalization and death from COVID-19. Over 77% of COVID deaths have been in people 65 or older.
Last week, the Job Creators Network, a conservative small business advocacy group, also announced plans to file a lawsuit to block the implementation of the OSHA guidance when it's released.
"It's one thing if a private company of any size wants to require employees to be vaccinated. It's a whole different ballgame when the federal government is compelling these businesses to police their employees," said Elaine Parker, president of the Job Creators Network Foundation. The group is filing suit with some of its small business members and their employees.
The
Job Creators Network along with other business groups have also sounded
the alarm over the risk that some employees would quit rather than be
forced to get a shot or weekly COVID test.
"The biggest issue these people are facing is the labor shortage," Parker said.
In a letter to the White House Safer Workforce Taskforce, the Association of General Contractors, which represents over 27,000 construction firms, warned that the vaccine mandate could "exacerbate the industry's labor shortage" while increasing the cost and completion times for federal projects, including infrastructure.
The group was specifically concerned about the vaccine mandate for federal contractors, which will take effect in a matter of days under an executive order. The industry is already experiencing high levels of vaccine skepticism and a worker shortage, the trade group noted. Firms fear many of their workers would quit for a job with another contractor that doesn't have a mandate rather than get the shot.
The OSHA rule is expected to affect roughly 170,000 businesses that
have 100 or fewer employees, or less than 1% of all businesses,
according to government data.
Additionally, many of the country's largest employers have already
enacted vaccine requirements for some or all of their workers.
Employers that mandated shots have reported high rates of uptake. Tyson Foods, which employs 120,000 workers, saw its vaccination rate increase from 45% to over 72% after issuing a mandate in August. United Airlines reported Wednesday that 97% of its 67,000-person workforce was vaccinated. United CEO Scott Kirby told CNN last week that only "a handful" of employees quit rather than getting the shot.
The
courts have had a strong record of upholding vaccine mandates by
private entities during the pandemic. Recent rulings favored shot
requirements by Houston Methodist Hospital and Indiana University. New lawsuits continue to pile up with recent challenges to a Kentucky hospital, the University of Maryland and the University of California.
It's less clear how courts could rule on a nationwide Labor Department mandate. Emergency temporary standards do not go through as rigorous an approval process as other federal rules and are subject to greater legal scrutiny.
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