Tuesday, October 19, 2021: Little Known Section 18(b) of OSHA Will Now Drive Many States to File Lawsuits to Stop the OSHA COVID-19 Vaccine Mandate They Do Not Want
As if we did not have enough litigation already challenging COVID-19 mask and jab mandates (20 pending at last count: changes weekly), another wave of lawsuits will come, of course, once the USDOL publishes OSHA’s imminent “Emergency Temporary Standard” (“ETS”). The draft ETS currently under review at the Office of Management Budget (OMB) (see our Tuesday October 12, 2021 WIR story: Vaccine Mandate Moves to White House for Review) reportedly will require employers subject to OSHA and employing 100 or more employees in the United States to require their employees to be vaccinated against the COVID-19 virus.
But here is what will galvanize a number of states in the U.S. opposed to mandated COVID-19 vaccinations to sue OSHA to stop its implementation of its ETS, once the ETS becomes legally effective. Section 18(b) of OSHA allows each of the fifty states and each of the federal territories to assert jurisdiction under state/territory law over safety and health issues. To do so, however, each such state must get approval from federal OSHA. Federal OSHA does so by way of OSHA-approved State Plans in which the state agrees to enforce safety and health statutes in the state at least as extensive as the safety and health protections the federal OSH Act imposes:
“(b) Any State which, at any time, desires to assume responsibility for development and enforcement therein of occupational safety and health standards relating to any occupational safety or health issue with respect to which a Federal standard has been promulgated (emphases added) under section 6 shall submit a State plan for the development of such standards and their enforcement.”
See section (c) of Section 18 of OSHA if you want to review all of the conditions to which the state must agree as a predicate for OSHA to approve that state’s proposed State Plan.
In the case of the very rare issuances of ETSs, the states and territories of the United States with approved Section 18(b) State Plans have thirty (30) days to implement the ETS. See OSHA ETS FAQs. There are currently 22 OSHA-approved State Plans and two OSHA-approved Plans in U.S. territories covering the private sector. (There are another six OSHA-approved state plans covering only state and local government workers according to OSHA’s State Plan division. See state listing here.)
The skirmishing has already begun, even in advance of OSHA’s promulgation of its ETS (which will be effective within 1 day of its publication in the Federal Register (after OMB approves it). Senior OSHA officials have already begun to warn State Plan states and territories to be ready to implement OSHA’s COVID-19 Vaccination Mandate ETS within 30 days of the date it becomes legally effective. In response, the Bloomberg Daily Labor Report reported Tuesday that seven state attorney generals (in Alaska, Arizona, Indiana, Kentucky, South Carolina, Utah and Wyoming) already “have vowed to fight a testing and vaccination mandate.”
At this writing, OMB is finishing a grueling schedule of over 200 meetings about OSHA’s proposed ETS with stakeholders ranging from unions, trade associations, employers, state governments, health care providers, pharmaceutical companies, etc. While no one knows what changes, if any, OMB will order to OSHA’s draft proposed ETS, or when OMB might greenlight OSHA to publish it, all agree OMB approval of an OSHA ETS is “imminent.”
Three Numbers to Remember:
- According to the U.S. Center for Disease Control, approximately 1/3 of adult Americans have yet to be vaccinated at all. (The number and percentage change daily, but the percentage has plateaued in recent months and does not change much week-over-week.)
- December 8, 2021 is the first trip-wire date at which time numerous employee groups (including federal civilian employees and federal contractors/subcontractor employees) will have to be vaccinated or lose their jobs, according to the White House. See our two WIR stories dated Thursday September 13, 2021 detailing this development: President Biden Mandates COVID-19 Vaccine for Certain Federal Contractors: Exceptions As Interesting As Who is Covered and Two of President Biden’s Four Vaccine Mandates are Likely Unlawful, Without Implementing Rules, While the Other Two are Likely Lawful.
- OSHA could cause its vaccination mandate ETS to be effective as early as the day after publication in the Federal Register except in states with State Plans. In those states, the OSHA ETS would be legally effective thirty days from the legally effective date of the ETS (i.e., the day after OSHA publishes it in the Federal Register). But, whenever it became legally effective in any particular state, the OSHA ETS would require all employers with over 100 employees to require their employees to be “vaxed.” If not, the coming OSHA ETS will apparently require that the employer must either (1) terminate the employment all of its employees who fail or refuse to be vaxed, or (2) reportedly the ETS, as drafted, will require OSHA to exact draconian financial fines in the amounts the ETS will identify. Let’s together model a projected date just to range a possible date the ETS COULD become legally effective: If the ETS publishes this week…say Friday October 29, 2021, the OSHA ETS could become legally effective Monday November 1, 2021 in states in which federal OSHA operates and thirty days later in State Plan states: December 1, 2021.
So, the “rubber hits the road” at the end of November to the first week of December. Some employers which choose to comply may have to issue WARN notices. (Think about that).
What Went on Here to Create OSHA State Plans the States Enforce but Implementing Safety and Health Rules the Feds Dictate?
Look at the date the President signed OSHA into law: 1970. That President was Richard M. Nixon. Republican. State-Rights advocate. While a fiscal conservative, President Nixon loved big government. (The movement to shrink the federal government in size and influence commenced only after the Watergate Scandal and after the unpopular Vietnam war. Jimmy Carter ran as a Democrat on a platform in 1976 of shrinking and consolidating the federal government as he had done to the bloated Georgia state government he found in place when he became the Governor of Georgia. Ronald Reagan, a Republican, followed President Carter running on a platform “to drain the swamp” in Washington D.C. and shrink both the federal government and federal regulation.) So, Nixon’s trade-off for big government was that the federal government “proposed” the laws and the States enforced them. OSHA became the blueprint for the modern federal agencies setting regulatory standards which serve as a “floor” (not a “ceiling”) which the states were required to implement unless they chose to go beyond them, in the discretion of the state governments. Republican Governors are now faced with the maxim: Eat what you sow.