Los Angeles, Calif.—The Biden administration’s proposed emergency workplace vaccine rules are essential to protect people from employers indifferent to their safety, three “essential workers” said Oct. 28.
The COVID-19 epidemic “showed how much we needed strong Occupational Safety and Health Administration standards,” Anne Barden, an 1199SEIU member who works as a dietary aide and cook in a nursing home in Hartford, Conn., said at a press conference organized by the National Council for Occupational Safety and Health (NCOSH). “The disrespect for our health, our bodies, is something we will no longer tolerate.”
The proposed OSHA emergency temporary standard on COVID-19 safety, announced by President Joseph Biden Sept. 9, is expected to be released during the first week of November, after the Office of Management and Budget finishes reviewing it. As outlined by Biden, it would mandate that all employers with at least 100 workers require them to get vaccinated or be tested for the virus weekly, and that the estimated 17 million workers at health facilities that receive federal Medicare or Medicaid payments must be fully vaccinated.
A previous Biden executive order requires all employees of contractors who do business with the federal government to be vaccinated by Dec. 8.
The proposed OSHA standard is “not a vaccine mandate,” said Jordan Barab, formerly deputy assistant secretary of labor for OSHA, as it would allow unvaccinated workers to keep their jobs as long as they got tested.
Several issues remain unresolved, such as when the standards would go into effect. The order for federal contractors gave them 10 weeks to comply. Some business groups are asking for a similar period, to enable them to get through the Christmas season without complications. That is a long time, Barab said, when an average of more than 1,000 people are dying of COVID-19 every day.
Despite OSHA’s perennial understaffing —it would take 165 years for the agency to inspect every workplace in the U.S. — Barab believes that the standards will be relatively easy to enforce. OSHA, he said, can simply ask employers to send in lists of which workers have been vaccinated or been tested, and follow up with the ones that don’t comply or get complaints from workers.
The PetSmart store in Tullahoma, Tennessee might be one such business, said Happy Allen, a member of United for Respect who worked there as a dog trainer for five years. The chain, bought by the private-equity firm BC Partners in 2015, had a large number of vaccine deniers in management, he said, and was so understaffed that the main rule at the peak of the pandemic was “not to call in sick.”
Management did not provide hand sanitizer or require social distancing, he added, but it did prohibit trainers from touching the dogs they worked with.
A Honduran woman who works in a poultry plant in western North Carolina, speaking in Spanish under a pseudonym, said her bosses “did not care” if workers got vaccinated.
A spate of challenges
Meanwhile, 24 states, all with Republican governors, have threatened to file lawsuits against the proposed emergency standards. “Mr. President, your vaccination mandate represents not only a threat to individual liberty, but a public health disaster that will displace vulnerable workers and exacerbate a nationwide hospital staffing crisis,” their letter said.
Arizona filed the first, on September 14. State Attorney General Mark Brnovich is arguing that the President does not have authority under the Constitution to require vaccines, and that the rule discriminates against U.S. citizens — because foreigners detained after entering the U.S. unlawfully are given the option whether to receive the vaccine.
Most of the other states are waiting until the OSHA standards are publicly issued before suing, but Florida Gov. Ron DeSantis announced Oct. 28 that his state was challenging Biden’s order covering federal contractors. Missouri, Nebraska, and eight other states filed a similar suit Oct. 29.
Missouri Attorney General Eric Schmitt contended that the mandate violated federal procurement law. He has also filed suits against local governments and school districts that require people to wear masks indoors.
Other states have gone the executive-order route. On Oct. 11, Texas Gov. Greg Abbott ordained that “no entity in Texas can compel receipt of a COVID-19 vaccination by any individual, including an employee or consumer.” He asked the state legislature to enact a similar law.
On Oct. 25, Alabama Gov. Kay Ivey forbade state agencies from penalizing employees or businesses for noncompliance with the federal vaccine mandate, although federal law could supersede that.
The main arguments they use are personal freedom and that OSHA does not have the authority to require vaccines. “The federal government is exceeding their power and it is important for us to take a stand because in Florida we believe these are choices based on individual circumstances,” Gov. DeSantis said in a statement Oct. 28.
That’s not the way contagious diseases work, Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, told National Public Radio in September: People who are not vaccinated are “a vehicle for the virus to be spreading to someone else.”
In a Oct. 14 letter to Secretary of Labor Martin J. Walsh, Reps. James Comer (R-Ky.), Virginia Foxx (R-N.C.), and Blaine Luetkemeyer (R-Mo.) said it is doubtful that OSHA has the authority “to mandate that private-sector employees take vaccine injections into their bodies,” as opposed to “a more flexible standard that would, for example, fully account for what is needed to protect those who already have natural immunity to COVID-19.”
The legal justification for an OSHA emergency temporary standard is that workers must face “grave danger” from “exposure to substances or agents determined to be toxic or physically harmful or new hazards.” On Oct. 28, the House Education and Labor Committee’s Republicans sent out a press release endorsing a claim that the law applied only to inorganic toxic or hazardous substances, not to contagious and potentially lethal viruses or bacteria.
Emergency protections against contagious diseases are “clearly justified by the Occupational Safety and Health Act,” Barab declared.
The main legal precedent on vaccination requirements is the Supreme Court’s 1905 decision in Jacobson v. Massachusetts. It upheld the city of Cambridge’s regulation that all inhabitants had to get vaccinated against smallpox, except for children with a signed doctor’s exemption. The city provided vaccinations for free.
“The state legislature proceeded upon the theory which recognized vaccination as at least an effective, if not the best, known way in which to meet and suppress the evils of a smallpox epidemic that imperiled an entire population,” Justice John M. Harlan wrote for the majority. Liberty for all could not exist, he opined, if individuals had the right to act “regardless of the injury that may be done to others.”
In that case, minister Henning Jacobson had refused to get vaccinated, claiming that it “quite often” caused serious injury, “occasionally” resulted in death, and that it is not safe when the blood is in a condition of impurity.
“The Supreme Court, in every context related to public health that you might imagine, has stated that your liberty interests do not include your capacity as an American to engage in behaviors that could cause harm to others,” James Hodge, director of Arizona State University’s Center for Public Health Law and Policy, told the Bulletin of the Atomic Scientists in October.
In 22 court decisions the center has tracked, 17 have upheld vaccine mandates, and one struck down a Florida law prohibiting cruise ships from requiring proof of vaccination from passengers. The other four cases involved religious exemptions, including two temporary injunctions that blocked New York State from enforcing its vaccination rule for healthcare workers on those with religious objections. On Oct. 29, a federal appeals court in Manhattan held that the New York rule was constitutional, ending the injunction.
One day prior, the Louisiana 2nd Circuit Court of Appeal in Shreveport ruled that Ochsner Health, the state’s largest health-care system, couldn’t fire or discipline employees who refuse to get vaccinated against COVID-19 while the mandate’s legality is still in court. The ruling came the day before Ochsner Health’s deadline for its 32,000 employees in Louisiana and Mississippi to be fully vaccinated or face dismissal.
As of Oct. 27, more than 740,000 Americans had died of COVID-19, according to the federal Centers for Disease Control.
Yet no one, Barab said, is authoritatively counting how many of those deaths were work-related, although NCOSH cites prisons, nursing homes, and meat and poultry plants as places with high rates of infection.
Anne Barden said that at the nursing home where she works, at one point half the staff was out sick or on quarantine, workers had to wear the same mask for several days, and management was fined $60,000 after one died.
“We really have no idea what the full impact on workers has been,” Barab said. “We’re missing some very important lessons for the next pandemic.”