On behalf of former OSHA heads, watchdog group files brief supporting COVID-19 ETS

Washington — Public Citizen has filed a friend-of-the-court brief with the 6th U.S. Circuit Court of Appeals on behalf of three former OSHA administrators, offering support for the agency’s emergency temporary standard on COVID-19 vaccination, testing and masking.

Among the former agency heads is Gerard Scannell, who filled the role during the George H.W. Bush administration (1989-1992) and is a former president and CEO of the National Safety Council. The others are Charles Jeffress (1997-2001) and OSHA’s longest-serving assistant secretary, David Michaels (2009-2017).

The implementation and enforcement of the ETS was halted by the New Orleans-based 5th Circuit Court of Appeals in a decision handed down Nov. 12. In a 22-page opinion, a three-judge panel writes that OSHA’s decision to include only workplaces with 100 or more employees in the ETS “belies the premise that any of this is truly an emergency.”

Among other considerations, the judges ruled that the promulgation of the ETS “grossly exceeds OSHA’s statutory authority.” They contend that the Occupational Safety and Health Act of 1970 wasn’t intended for OSHA “to make sweeping pronouncements on matters of public health” and that SARS-CoV-2 – the virus that causes COVID-19 – is an airborne virus that is “widely present in society (and thus not particular to any workplace).”

The 6th Circuit, based in Cincinnati, will consider a consolidated challenge to the ETS in the near future. The court was chosen to decide on the fate of the ETS via a lottery, conducted by the Judicial Panel on Multidistrict Litigation on Nov. 16 after 27 petitions for review on the ETS had been filed in 12 appeals courts.

In a Nov. 30 press release, watchdog group Public Citizen contends the 5th Circuit decision is “contrary to the plain language” of the OSH Act, which “gives OSHA broad authority to prevent workplace illnesses and diseases caused by exposure to ‘harmful physical agents,’ including viruses.”

The release continues: “OSHA consistently has interpreted the act to authorize protections against infectious agents, including bloodborne pathogens, airborne viruses and bacteria – such as the tuberculosis bacillus – as well as other hazardous conditions that workers encounter both at work and elsewhere.”

In a Nov. 30 tweet, Michaels said he was “proud to be among former OSHA directors filing a bipartisan brief explaining how [OSHA] works – and what the 5th Circuit got wrong.”

OSHA published the ETS in the Nov. 5 Federal Register, giving employers with 100-plus employees 30 days to develop, implement and enforce a mandatory COVID-19 vaccination policy – or provide a policy that gives workers the choice to get vaccinated or undergo weekly COVID-19 testing.

Covered employees had an initial deadline of Jan. 4 to become fully vaccinated, or begin weekly testing and wear a face covering while indoors or in a vehicle “with another person for work purposes.”

On its website, OSHA states that although it remains “confident in its authority to protect workers in emergencies,” it has suspended activities related to the implementation and enforcement of the ETS “pending future developments in the litigation.”