I was going to let the whole OSHA discussion lie quiet after the first discussion here, but since it's bubbling up again, please let me jump in to point out that both GoofGoof and Lazyboy97o are right, in part. Like so much in this area, this whole question of who has what authority to govern Covid-related governmental power is complicated, especially when there are huge bodies of law around both an employment relationship and constitutional structures like the separation of powers. The new proposed OSHA rule is the subject of heated debate in the media, reflecting that complexity. No simple answers here.
So, bottom line? OSHA does not have the ability to do whatever it wants, or even just what President Biden tells it to do; it is limited by its own statutory authority (that is, the authority delegated to it by Congress), and by prior Supreme Court rules. But assuming it follows the rules, it can issue some powerful new rules about vaccination mandates in
some workplaces. Like all such mandates, reviewing courts will judge what OSHA does under rules developed over the course of the pandemic, including requiring OSHA to prove, with specific evidence, that its proposed rule has a remedy precisely tailored to the problems it claims. This is the same standard we've discussed here for several other cases, such as the NCL cruise line case.
So expect to see something from OSHA that is more narrowly-written than what some have speculated about in the media, but still likely to give employers who do want to comply the ability to defend their workplace rules. And expect to see a bunch of lawsuits, with all sorts of weird legal twists.
For those who want to dig deeper, there's a new resource available today. Last night, Professor Jonathan Adler, a well-known administrative law expert from Case Western Reserve University (contrary to conventional wisdom, a lot of new legal thinking is coming out of Midwestern law schools, much of it very different from the intellectual elites on both coasts) put up a very good baseline explainer, with a minimum of legalese, about OSHA's power and relationship to the White House:
https://reason.com/volokh/2021/09/1...cination-mandate-and-likely-legal-challenges/ The Volokh Conspiracy blog (now at Reason magazine, but previously at the Washington Post and other sites) is run by Prof. Eugene Volokh, a top constitutional scholar from UCLA, and it has a decidedly libertarian slant, which makes it quite influential with the new Supreme Court, now split between conservatives, liberals and libertarians.
Some excerpts from Prof. Adler's blog post:
For starters, it is important to recognize that this proposed standard represents a far more traditional use of agency authority than did the CDC's eviction moratorium. While this is unquestionably an aggressive use of OSHA authority, it does not represent a dramatic departure from the sorts of things OSHA has done over the past fifty years, and does not raise quite the same specter of an agency without unlimited authority that the CDC [eviction] moratoria did. This doesn't mean the standard should or will survive legal challenge, but it does indicate the issues are somewhat different.
Under the Occupational Safety and Health Act of 1970, OSHA has broad authority to set workplace safety standards ("occupational safety and health standards"), including standards aimed at reducing the threat of disease. ... First, the authority here is quite broad, reaching just about anything that could pose a health or safety risk in the workplace. OSHA standards are not just about exposures to chemicals, but cover all manner of potential workplace threats [including "agents," which can include viruses]. Second, any standards set under the statute must be "reasonably necessary or appropriate." Third, as interpreted by the Supreme Court, this language ... requires that OSHA conclude that the danger to be regulated poses a "significant risk" to employees.
...
Where OSHA will have to be careful in drafting and defending the ETS [emergency rules that take less time to put out than formal regulations] is in substantiating that COVID-19 (or newly emergent variants of it) pose a "grave danger" in the workplace, and that the ETS is "necessary" to limit that danger. ... There must be a "grave danger," not merely a significant risk, and the standard must be "necessary," as opposed to merely "reasonably necessary or appropriate." In other words, OSHA must clear a higher hurdle than is required for a regular workplace standard.
...
While the White House is focused on the broader spread of COVID, and overall vaccination rates, these cannot be OSHA's focus. Nor can OSHA adopt an overbroad rule, roping in all large employers when the relevant risks are concentrated in a subset of firms. That there are some workplaces (say, a meat-packing plant) where there is a serious risk of spread, particularly if employees are unvaccinated, may justify an ETS that applies to those workplaces. It cannot justify an ETS applied to all workplaces generally. This is why I raised an eyebrow at the White House's focus on the number of employees in a firm (as opposed to the number of employees at a given workplace). If the eventual ETS is similarly broad, it could have a problem.
The cases do legitimately look like they are trending down (not just a holiday drop in testing). God willing that trend continues and FL hospitals continue to get some relief.