The First General Federal Vaccination Requirement: The OSHA Emergency Temporary Standard for COVID-19 Vaccinations

Abstract

There has never been a general federal vaccination requirement, and, until recently, President Joe Biden opposed adopting one. Instead, he took numerous opportunities to encourage or incentivize the public to become vaccinated—in effect to “nudge” people toward that result, rather than order them to do so. On September 9, 2021, however, he switched gears. Expressing frustration that an insufficient number of Americans had received the vaccine, Biden directed the Occupational Safety and Health Administration (OSHA), for the first time in American history, to promulgate a federal “emergency temporary standard” (ETS) requiring all private businesses with 100 or more employees to ensure that every employee is vaccinated against the virus or presents a negative test result on a weekly basis. The OSHA standard is predicted to apply to at least 80 million people.

This Article will address the legality of the OSHA vaccination-or-weekly-test requirement (which, for simplicity’s sake, we will call a vaccination require-ment). Part I will address the rationality of the proposed OSHA standard. Part II will discuss whether OSHA has the statutory authority to adopt such a standard. Part III will briefly discuss some of the constitutional challenges to the rule.

Keywords: Occupational Safety and health Administration, OSHA, Occupational Safety and Health Act, OSH Act, Emergency Temporary Standard, Mandatory Vaccination of Test Requirement