The federal Occupational Safety and Health Administration is set to issue temporary emergency rules in the coming weeks or months to guide President Joe Biden’s COVID-19 vaccine mandate. Biden’s directive requires a COVID-19 vaccine or weekly testing among employees at companies with 100 workers or more — roughly two-thirds of the U.S. workforce.
Biden directed OSHA to promulgate rules for what’s known as an emergency temporary standard that would take effect immediately to protect worker safety from a “grave danger,” in this case the COVID-19 pandemic.
The emergency rules will add one more burden to employers that have been hit with many challenges since the pandemic’s outbreak in early 2020.
Their chances of success? As Warner partner Jon Kok points out: Court challenges have successfully halted emergency OSHA rules five of the six times they’ve been issued. The last instance was in 1983 and was related to asbestos.
“OSHA’s never gotten into the vaccine business before,” said Kok, who co-chairs the law firm’s Labor and Employment Practice Group. “This is new territory for them.”
The lack of a public review and comment period in the emergency rulemaking process will likely be among the legal points that opponents raise. OSHA rules typically involve a “very lengthy” process that can take years, Kok said. In this instance, OSHA seeks to have emergency rules in place in mere weeks.
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Named Best Lawyers’® Grand Rapids Lawyer of the Year in 2022, 2021 and 2019, Jon specializes in all aspects of labor and employment law. He counsels major public and private corporations on such issues as discrimination and harassment, unfair competition, disability and leave issues and the design and negotiation of executive employment and compensation agreements. To learn more about Jon’s practice, click here.
