OSHA and Public Health in an Emergency and a Culture War

Abstract

The approval of COVID-19 vaccinations for working age Americans in early 2021 offered a welcome release from oppressive non-vaccination safety measures. Group activities including normal employment operations became possible with a greatly reduced risk of serious illness and death. However, escape from the virus and non-vaccination measures was limited by widespread resistance to vaccination.

OSHA became one of a handful of federal government offices that adopted rules to motivate more people to accept vaccination as the best way to protect themselves, protect their families, and escape the oppression of non-vaccination measures. OSHA, which regulates private sector “occupational” health, issued an “emergency” rule that applied only to private sector employers with at least 100 employees. The rule did not “mandate” vaccinations. However, it strongly motivated employers to adopt their own vaccination requirements in order to avoid the alternative: burdensome non-vaccination requirements.

OSHA’s emergency rule did not last long. Within two months, the U.S. Supreme Court issued an emergency stay against the rule in National Federation of Independent Businesses v. Dep't of Labor (NFIB). The practical effect of the Court’s emergency stay was the end of the emergency OSHA rule.

The OSHA rule is dead, but NFIB lingers as a problem for future health crises. COVID-19 is not necessarily the last or most serious health crisis we will face as a nation. OSHA will probably be needed to contribute to a national response in the future. NFIB is a poorly reasoned but still significant obstacle for OSHA’s participation in a public health crisis. This article examines the ways OSHA can act on an emergency basis in a crisis, the expanse and limits of its authority to regulate “occupational” health, the meaning and flaws of the Court’s decision in NFIB to block enforcement of OSHA’s COVID-19 rule, and the possible strategies for OSHA in the next public-occupational health crisis.

Keywords: OSHA, Occupational Safety and Health, COVID-19, Employment, Public Health