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By Lambert Strether of Corrente.

Beginning in medias res, OSHA’s Emergency Temporary Standard (ETS) for Vaccination and Testing in the Workplace (PDF) was issued on November 5, 2021. On November 6, the U.S. Court of Appeals for the Fifth Circuit issued a stay; on November 26, the Fifth Circuit affirmed the stay in a 22-page opinion (BST Holdings, LLC v. Occupational Safety and Health Administration, No. 21-60845[1]). The Fifth Circuit’s case has now been consolidated with 34 other challenges at the Ohio-based 6th US Circuit Court of Appeal. In the meantime, the Fifth Circuit has directed that OSHA ‘take no steps to implement or enforce’ the ETS ‘until further court order,’ so the ETS is suspended. However, some businesses had gone ahead with implementation anyhow; were the ETS not in limbo, covered employers would be expected to have determined their employees vaccination status by December 5; the deadline for employees to receive their final vaccine dose or begin testing would have been January 4, 2022. Here is a summary of the ETS’s employer requirements from an insurance broker:

This ETS applies to all employers who have 100 or more employees and are as follows:

• Employers must implement a COVID-19 vaccination policy that requires mandatory vaccination or allows employees to either get vaccinated or undergo weekly COVID-19 testing.

Note the “or.” The ETS, while coercive, does not require jabs as such:

• Employers must determine the vaccination status for each employee, obtain acceptable proof of vaccination from vaccinated employees and maintain records and a roster of each employee’s
• All employers must support vaccination by providing up to 4 hours of paid time to receive each dose and up to 2 days to recover from any side effects from each dose.
• Employers must ensure that employees who aren’t fully vaccinated are tested at least weekly (if in the workplace at least once a week) or within 7 days before entering the workplace.
• The ETS does not require employers to pay for any costs associated with testing; however, there could be other labor laws, state requirements or contractual agreements that may require the employer to pay.

Employees may have to pay for testing, and as I read it, recovery time is not paid.

• Employees who are not fully vaccinated must wear a face covering when indoors or when occupying a vehicle with another person for work purposes.
• Employees must be required to provide prompt notice when they test positive for COVID-19 or if they are diagnosed with COVID-19. Employees who have received a positive test or a COVID-19 diagnosis must immediately be removed from the workplace, regardless of their vaccination status and they must not be allowed to return until they meet certain return to work criteria.
• Employers must provide employees with information about the requirements of the ETS, the company policy, information on vaccine efficacy, protections against retaliation and laws on knowingly supplying false information.
• Employers must report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them and work-related COVID-19 in-patient hospitalizations within 24 hours of learning about the hospitalization.

(The vendor then lists a number of services they provide, like developing a testing strategy, that a national health service would already have provided, if we were a civilized country.)

So that is where we are. In the remainder of the post, I’ll look at the history of the ETS, the extremely entertaining text of BST Holdings vs. OSHA, and the weakness of the EST as a pandemic prevention measure. I’ll conclude with a few remarks on the Biden Administration’s blundering.

History of the ETS

I tried to write a post on the EST when the initial draft was sent to the White House on October 12, but I couldn’t find a copy of it anywhere; it was almost as if an embargo had been imposed. This Time Magazine article from late September may explain why. The White House dictated the bill, and OSHA was their stenographer:

The tension between the agency and the White House traces back to Biden’s second day in office, when he directed OSHA to create a comprehensive ETS that could prevent worker exposure to COVID-19. A team including health and safety specialists, industrial hygienists, engineers and attorneys collaborated to write a rule for all workplaces. The result was , according to the draft text of the rule. (It did not include vaccination requirements, as OSHA wrote the draft before vaccines were widely available.) The unpublished ETS is available due to a Freedom of Information Act request.

But the ETS that the President had personally requested “never saw the light of day,” says Debbie Berkowitz, a former OSHA official and National Employment Law Project (NELP) safety program director. “I think the Administration didn’t have the political will to get it done.” One problem, experts say, is that the ETS was overtaken by vaccine availability, evolving Centers for Disease Control and Prevention (CDC) guidelines, and animosity toward federal mandates.

In other words, the unpublished draft would have imposed the “Swiss Cheese Model” of layered protection on the workplace. Instead, as if straight out of the West Wing:

But the scope of the rule was drafted in the White House without significant input from agency experts, former OSHA officials say. “OSHA staff and leaders and DOL staff and leaders would prefer a more comprehensive standard,” [Former Deputy Assistant Secretary of Labor for OSHA Jordan Barab] says. “I think there is a lot of frustration that this is limited exclusively to just vaccinations or testing. The mitigation measures are totally absent.”

Note that this makes the current ETS White House Chief of Staff and former Ebola[2] Czar Ron Klain’s baby. Klain would also have been responsible for the weird eligibility determination for covered businesses:

That this ETS applies only to businesses with 100 or more employees also marked a departure from the agency’s standards. Limiting the vaccination and testing rule to larger businesses has no precedence in past guidelines, says David Michaels, OSHA’s administrator from 2009 to 2017. “When it comes to protecting workers from serious hazards, OSHA doesn’t distinguish between workplaces of different sizes,” he says.

As we are about to see, some of the legal issues discerned — if that is the word I want — by the Fifth Circuit come from this series of White House decisions.

BST Holdings vs. OSHA

I do not have a view on the merits of the Fifth Circuit’s stay, but it is well-written (“blistering“). Rather, I will pluck four extracts from the text that either bear on the Biden Administration’s decision making in developing the rule, that speak to our understanding of the pandemic, or that bear on our current crisis in governance.

1) The rule is sloppily drafted

Thus, as § 655(c)(1) plainly provides, to be lawfully enacted, an ETS must: (1) address “substances or agents determined to be toxic or physically harmful”—or “new hazards”—in the workplace. In its brief, Texas makes a compelling argument that § 655(c)(1)’s neighboring phrases “substances or agents” and “toxic or physically harmful” place beyond the purview of an OSHA ETS in the first place. To avoid “giving unintended breadth to the Acts of Congress,” courts “rely on the principle of noscitur a sociis—a word is known by the company it keeps.” Yates v. United States, 574 U.S. 528, 543 (2015) (cleaned up[3]). Here, OSHA’s attempt to shoehorn that is both widely present in society (and thus not particular to any workplace) and non-life-threatening to a vast majority of employees into a neighboring phrase connoting toxicity and poisonousness is yet another transparent stretch.

First, I’m delighted to find SARS-CoV-2 characterized as “an airborne virus” in a judicial ruling; it seems the only people who aren’t clear on this point are CDC, WHO, and the West Wing[4]. Second, Texas’s argument that “agent” doesn’t necessarily subsume “infectious agent” seems plausible to this layperson; and it seems like the sort of thing the ETS drafters should have worked out in advance.

2) There’s no emergency.

The Administration’s prior statements in this regard further belie the notion that COVID-19 poses the kind of emergency that allows OSHA to take the extreme measure of an ETS. In reviewing agency pronouncements, courts need not turn a blind eye to the statements of those issuing such pronouncements. See, e.g., FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). In fact, courts have an affirmative duty not to do so. It is thus critical to note that the Mandate makes no serious attempt to explain why OSHA and the President himself17 were against vaccine mandates before they were for one here. See, e.g., Occupational Exposure to Bloodborne Pathogens, 54 Fed. Reg. 23,042, 23,045 (May 30, 1989) (“Health in general is an intensely personal matter. . . . OSHA prefers to encourage rather than try to force by governmental coercion, employee cooperation in [a] vaccination program.”); Letter from Loren Sweatt, Principal Deputy Assistant Sec’y, OSHA, to Richard L. Trumka, President, AFL-CIO at 3 (May 29, 2020) [hereinafter Sweatt Letter] (acknowledging as a general matter that it “would not be necessary for OSHA to issue an ETS to protect workers from infectious diseases” because “OSHA lacks evidence to conclude that all infectious diseases to which employees may be exposed at a workplace constitute a ‘grave danger’ for which an ETS is an appropriate remedy”). Because it is generally “arbitrary or capricious” to “depart from a prior policy sub silentio,” agencies must typically provide a “detailed explanation” for contradicting a prior policy, particularly when the “prior policy has engendered serious reliance interests.” FCC v. Fox, 556 U.S. at 515. OSHA’s reversal here strains credulity, as does its pretextual basis. Such shortcomings are all hallmarks of unlawful agency actions.

The ETS had an exceptionally long — indeed, a nine-month’s long — gestation period; from January to October 2021. It’s hard to argue for an emergency in such a case. (I would think the real emergency was Covid’s resurgence after the Biden administration told everybody they could take their masks off and Covid promptly surged, but that doesn’t seem to be an argument anyone has made.)

3) The rule is overinclusive[5].

We begin by stating the obvious. The Occupational Safety and Health Act, which created OSHA, was enacted by Congress to assure Americans “safe and healthful working conditions and to preserve our human resources.” See 29 U.S.C. § 651 (statement of findings and declaration of purpose and policy). It was not—and likely could not be, under the Commerce Clause and nondelegation doctrine⁸—intended to authorize a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways. Cf. Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2488–90 (2021) (per curiam).

⁸ The nondelegation doctrine constrains Congress’s ability to delegate its legislative authority to executive agencies. See, e.g., Mistretta v. United States, 488 U.S. 361, 371–72 (1989) (“The Constitution provides that ‘[a]ll legislative Powers herein granted shall be vested in a Congress of the United States’ . . . and we have long insisted that ‘the integrity and maintenance of the system of government ordered by the Constitution’ mandate that Congress generally cannot delegate its legislative power to another Branch.”

The non-delegation doctrine assumes a Congress that can legislate and a government that can govern. That’s not where we are. Hence, end-runs like the ETS (and it is an end-run, as Klain’s remarks will show).

4) The rule is underinclusive.

[The EST purports] to save employees with 99 or more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat).

The Fifth Circuit is quite right; this is absurd (and doesn’t sound a lot like “equal protection,” if such a thing applies anymore). And the absurdity is 100% down to the White House and Ron Klain; OSHA (see David Michaels above) says this limitation in the ETS is without precedent. But liberal Democrats just can’t quit their complex eligibility requirements!

Weakness of the ETS

When we looked at the history of the ETS, we saw that the Biden administration rejected the “Swiss Cheese Model” in favor of vax + masks (not that there’s anything wrong with masks). Hence, they rejected imposing requirements on ventilation. Let me underline this by quoting the ETS FAQ:

Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-2), the virus that causes COVID-19, is highly infectious and can spread from person to person, including through . The virus that causes COVID-19 is highly transmissible and can be spread by people who have no symptoms. Particles containing the virus can travel more than 6 feet, especially indoors and in dry conditions (relative humidity below 40%), and can be spread by individuals who do not know they are infected.

Again, everybody knows how aerosol transmission works but CDC, WHO, and the West Wing. More; I have underlined the words that show were we do not have requirements:

OSHA also continues to implementing multiple layers of controls (e.g. mask wearing, distancing, and increased ventilation). … Additional fundamental controls that protect unvaccinated and other at-risk workers include maintaining ventilation systems, implementing physical distancing, and properly using face coverings (or other Personal Protective Equipment (PPE) and respiratory protection such as N95 respirators when appropriate), and proper cleaning…. OSHA provides employers with specific for environments at a higher risk for exposure to or spread of COVID-19, primarily workplaces where unvaccinated or otherwise at-risk workers are more likely to be in prolonged, close contact with other workers or the public, or in closed spaces without adequate ventilation.

Again, through the ETS the West Wing rejects the layered approach recommended by OSHA, and rejects requiring ventilation standards[6].

An additional weakness is masks, which OSAH calls “face coverings”:

A “face covering” means a covering that: (1) completely covers the nose and mouth; (2) is made with two or more layers of a breathable fabric that is tightly woven (i.e., fabrics that do not let light pass through when held up to a light source); (3) is secured to the head with ties, ear loops, or elastic bands that go behind the head. If gaiters are worn, they should have two layers of fabric or be folded to make two layers; (4) fits snugly over the nose, mouth, and chin with no large gaps on the outside of the face; and (5) is a solid piece of material without slits, exhalation valves, visible holes, punctures, or other openings. This definition of face covering allows various different types of masks including clear face coverings or cloth face coverings with a clear plastic panel that, despite the non-cloth material allowing light to pass through, otherwise meet this definition and which may be used to facilitate communication with people who are hearing impaired or others who need to see a speaker’s mouth or facial expressions to understand speech or sign language, respectively. Face coverings can be manufactured or homemade, and they can incorporate a variety of designs, structures, and materials. Face coverings provide variable levels of protection based on their design and construction.

They allow gaiters. My gawd. This is, to say the least, a missed opportunity to make a market in (K)N95s. I know many of us were making home-made masks in 2020, and a good thing, too. But this — hear me out — is 2021. OSHA should at least have some technical standards, here, instead of the insanely mushy “Face coverings provide variable levels of protection based on their design and construction.”

Conclusion

The West Wing seems to be fixated — we might call this their idée vax — on vaccination (plus masking). If we only look at their behavior, they reject aerosol transmission altogether; Biden implicitly endorsed plexiglass “protection” (droplet theory-driven hygiene theatre) in May 2021 (!!); Dr. Biden pointedly mentioned only vax in her article on “What to do if you want to protect your kids” in November 2021 (!!!) (this at a time when parents are busily building Corsi boxes, smuggling CO2 meters into classrooms, and getting reluctant administrators to open windows and prop open doors).

Their idée vax carried through into the drafting of the ETS. From Jonathan Turley:

Biden eventually acknowledged that he does not have the authority to order a national mandate directly. That is when Klain again confidently rushed in where wiser government lawyers fear to tread. He announced that the White House had found a way to evade the constitutional limitations: “OSHA doing this vaxx mandate as an emergency workplace safety rule is for the Federal govt to require vaccinations.”

The problem is that OSHA itself failed to see that “common sense” meaning until the White House pushed the work-around. After President Biden announced that OSHA would make the declaration, the agency appears to have reverse-engineered its interpretation to fit the order. For years, OSHA debated whether it can or should issue an “Infectious Diseases Regulatory Framework” covering “airborne infectious diseases.” It has never issued such a framework and, in the past, has done no more than requiring employers to offer workers such things as Hepatitis B vaccination.

(The Fifth Circuit took notice of Klain’s “work-around” verbiage in Footnote 13.)

In one of its rhetorical flights, the Fifth Circuit writes:

The Mandate is staggeringly overbroad. Applying to 2 out of 3 private-sector employees in America, in , the Mandate fails to consider what is perhaps the most salient fact of all: the ongoing threat of COVID-19 is more dangerous to some employees than to other employees. All else equal, a 28 year-old trucker spending the bulk of his workday in the solitude of his cab is simply less vulnerable to COVID-19 than a 62 year-old prison janitor. Likewise, a naturally immune unvaccinated worker is presumably at less risk than an unvaccinated worker who has never had the virus. The list goes on, but one constant remains—the Mandate fails almost completely to address, or even respond to, much of this reality and common sense.

This is not entirely fair; the ETS does not require masks for isolated individuals, like truck drivers. Nevertheless, vax + masks most certainly does not take the diversity of the American workplace into account. The savage irony here is that the Swiss Cheese Model rejected by the Biden Administration does exactly that; to implement ventilation requirements, for example, one must understand the ventilation patterns of a particular workplace in a particular industry. That’s about as “diverse” as it gets. Different layers for different players, one might say. Biden wants OSHA to do what it can’t (vax), and doesn’t want OSHA to do what it should (ventilation).

We’d better hope we dodge a bullet on the next variant, because with ideé vax we’ve not only not failed to establish a regulatory regimen for the non-pharmaceutical interventions we’ll need to hold the line until pharmaceuticals (we hope) bring relief, we’ve allowed them to be actively discredited (masks and social distancing vs. “freedom”) or ignored and erased the science that supports them (aerosol transmission). Such is the case with the sadly inadequate ETS. Joe, Ron, Rachel, Tony: Good job.

NOTES

[1] Why the hell is it that the press never cites to cases? It’s abominable practice.

[2] See here for the unwillingness of the public health establishment to consider that Ebola might be airborne, a history surely known by Klain, if he is competent.

[3] Somebody went “Ouch!” when they read that, but I I don’t know who or why.

[4] And some powerful gatekeepers in the hospital “infection control” community.

[5] The stay uses the “overinclusive”/”underinclusive” trope in a somewhat different structure, but these are the texts I wish to extract.

[6] I believe that OSHA has always been weak on ventilation:

Yet we can’t get an @OSHA_DOL Emergency Temporary Standard establishing ventilation and filtration standards for all workplaces. Meanwhile, the latest 5th Circuit decision chips away at OSHA’s authority to regulate during the COVID-19 pandemic. #PHLaw https://t.co/fWTh9KaLQV

— Michael S. Sinha, MD JD MPH (@DrSinhaEsq) November 17, 2021

Time also included this nugget on the reaction of OSHA worker bees to the West Wing’s reaction to their initial draft:

“It was very frustrating for everyone at OSHA, from the acting administrator all the way down to the staff working every single weekend for months on the standard,” Barab says.

It would be even more frustrating if the draft shows they screwed up their courage to do the right thing on ventilation under a presumably liberal President, only to be slapped down.