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Five Reasons Why The Lawsuits To Block The OSHA Standard Are Legally Flawed 

By December 8, 2021No Comments
  • Republican Attorneys General Argue COVID Doesn’t Qualify As A “Grave Danger” Under The Law.
    • COVID-19 is the single largest occupational health crisis since OSHA was created. OSHA’s ability to issue an Emergency Temporary Standard (ETS) was created precisely to address dangers such as COVID-19.
    • Yet, the Fifth Circuit and some of the challengers doubt whether COVID even qualifies as a “grave danger,” despite a death toll of more than 780,000 Americans, with 80,000 new infections each day. By this standard, nothing would qualify as a grave danger.
    • The emergence of the Omicron variant demonstrates the continued threat posed by the COVID-19 pandemic and the heightened need for protection measures to reduce infections and preventative deaths. 
  • Republican Attorneys General Argue OSHA Doesn’t Have The Authority To Regulate Viruses.
    • OSHA has broad authority to protect the health and safety of workers and has emergency powers in the event “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.”
    • Viruses clearly qualify. In the past, when infectious diseases threatened the health or lives of workers, OSHA has stepped in to provide guidance and prevent illness. In 1991, under Republican President George H.W. Bush, OSHA issued a requirement to limit exposure to Hepatitis B and HIV/AIDS in occupational settings through a combination of methods including Hepatitis B vaccination and use of personal protective equipment.
    • OSHA issued an ETS to protect health care workers from COVID-19 in June, and that was NOT contested by employers. 
    • OSHA was created to ensure workplaces are safe and healthy for employees. Without the ETS’s vaccine or testing rule, an untested, unvaccinated employee puts everyone around them at unnecessary risk— the exact type of workplace risk that OSHA was created to address. 
  • The Fifth Circuit Argues OSHA’s Vaccine Or Test Rule Is Too Broad.
    • The Fifth Circuit states OSHA’s rule is too broad in its coverage, providing the example that the same rule covers both the lonely janitor or truck driver, as well as workers in congested work environments, like meatpacking plants. They are wrong — OSHA’s rule purposefully exempts workers who do not come into contact with coworkers or customers and those that work outdoors.
  • The Fifth Circuit Did Not Even Mention Public Health in its Ruling.
    • The Fifth Circuit did not even mention — much less substantively address — public health in discussing whether or not it was in the “public interest” to stay the standard.
  • The Fifth Circuit Failed to Follow Normal Procedure.
    • When an OSHA rule is challenged in more than one federal circuit, cases are typically consolidated and presented before a single federal circuit court, which is chosen at random. But the Fifth Circuit went ahead anyway.
      • OSHA’s vaccine or testing requirement doesn’t go into effect until January 4th, raising questions as to why the Fifth Circuit felt it necessary to stay the rule months in advance.  This action by the Fifth Circuit suggests they were more interested in making a political statement than following normal procedure. 
      • The Fifth Circuit’s actions raise questions about the race to stay, suggesting they wished to stop the rule from going into effect before the case was removed from the Fifth Circuit.