https://www.nationalreview.com/the-...-isthat-biden-regulation-on-vaccine-mandates/
Say, Where Is That Biden Regulation on Vaccine Mandates?
Three weeks after President Biden announced that all companies with 100 or more employees would have to enforce a vaccine mandate or weekly testing, there’s still no sense of when the Occupational Safety and Health Administration (OSHA) will actually issue the regulations; two Morning Jolt readers offer different perspectives on New York state’s vaccine mandate from the view of a patient and the view of an administrator; and the
Albany Times Union notices a curious loophole in the state’s vaccine-mandate law.
The Curious Case of the Missing OSHA Regulation
Seven days ago, this
newsletter noted that President Biden’s vaccine mandate for employers had not yet been issued by OSHA, two weeks after Biden announced the new policy.
A week later, not only has OSHA not issued the rule, but the Biden administration apparently has no idea when the federal agency will issue the new regulations. Yesterday,
White House press secretary Jen Psaki declined to offer any timeline:
Q: About the OSHA rule —
PSAKI: Yeah.
Q: On mandates. You had said it would be a few weeks just now. When it was announced a few weeks ago, it was going to take a few weeks. So, are you signaling a delay of any kind of that rule?
PSAKI: No, we never gave an exact timeline, so — maybe we should have been more specific at the time. Obviously, it takes some time. And we want to make sure when we put these out, they’re clear and they provide guidance necessary to businesses.
Q: So, how many weeks, then, are you expecting it to take?
PSAKI: I can’t give you a timeline. OSHA is working on them. But obviously — hopefully, we’ll know more in the coming weeks.
Businesses are starting to get irked, not just with the delay, but by the fact that OSHA has indicated it’s not interested in hearing from businesses on how the mandate could be best implemented. The Coalition for Workplace Safety — which includes groups such as the U.S. Chamber of Commerce, National Retail Federation, the National Association of Manufacturers, and the National Association of Home Builders — wrote a letter full of palpable frustration to OSHA’s current head, James Frederick, the acting assistant secretary of Labor.
“This ETS is expected to be the most far-reaching standard ever issued by OSHA, and public input will be critical,”
the Coalition wrote. “Numerous trade associations, which are member organizations of the coalition, have reached out to us with questions their members have posed regarding the ETS and related implementation. Many of these questions are detailed and nuanced. OSHA should consider these questions and seek written input on a draft standard from stakeholders before issuing any ETS. To do otherwise invites avoidable implementation challenges and costs that would undermine the effectiveness of this ETS achieving its goals.”
(Not that it is the biggest deal in the world, but OSHA has not had a Senate-confirmed director since 2017.
Acting directors have run the agency for long stretches throughout its history.)
Once enacted, the mandate will almost certainly face immediate legal challenges. This week, David B. Rivkin Jr. and Robert Alt wrote in a
Wall Street Journal op-ed that, “
The Occupational Safety and Health Act of 1970 authorizes OSHA to enact rules that are ‘reasonably necessary or appropriate to provide safe or healthful employment and places of employment.’ But the Biden mandate is unreasonably and unnecessarily broad. As announced, it applies to all employees, even those who work at home, as millions have done during the pandemic. It’s simultaneously too narrow, failing to require vaccination for contractors, customers and other nonemployees who may be present at the work site. It’s overbroad in another way: Previous Covid infection doesn’t excuse employees from the vaccine requirement.”
Rivkin and Alt also noted that OSHA is bypassing the usual notice-and-comment rule-making process, and issuing what’s known as an Emergency Temporary Standard. OSHA has used that legal authority only ten times in 50 years. “Courts have decided challenges to six of those standards, nixing five and upholding only one.”
