NSC Business and Industry Division news NSC Construction and Utilities Division news NSC Labor Division news Federal agencies Legislation Workplace exposures

Senate approves resolution to repeal OSHA’s COVID-19 ETS

roll call vote
Photo: U.S. Senate

Washington — The Senate on Dec. 8 passed a Congressional Review Act resolution in an attempt to repeal OSHA’s emergency temporary standard on COVID-19 vaccination, testing and masking.

The resolution, however, needs to pass in the Democrat-controlled House and be signed by President Joe Biden to take effect, or Congress would have to override a likely presidential veto.

The Congressional Review Act, included as part of the Small Business Regulatory Enforcement Fairness Act of 1996, allows lawmakers to repeal regulations within 60 legislative days, or days when Congress is in session.

Before 2017, the CRA was successfully invoked only once – to nix OSHA’s standard on ergonomics in 2001. It was used 16 times during the Trump administration and, as of July 1, has been used three times during the Biden administration. Six joint CRA resolutions have been vetoed by presidents, and another six resolutions have passed just one chamber of Congress.

This latest resolution was sponsored by Sen. Mike Braun (R-IN), but garnered support from Sens. Joe Manchin (D-WV) and Jon Tester (D-MT) in a 52-48 vote.

“I have always supported a vaccine mandate for federal employees and the military because maintaining the essential services and military readiness the federal government provides is a matter of national importance,” Manchin said in a statement. “However, I do not support any government vaccine mandate for private businesses. It is not the place of the federal government to tell private business owners how to protect their employees from COVID-19 and operate their businesses.

“We should incentivize, not penalize, private employers to encourage vaccination among their employees.”

At the moment, the ETS is in legal limbo after the 5th U.S. Circuit Court of Appeals issued a stay on Nov. 12. OSHA has suspended implementation and enforcement efforts, but is accepting comments on the ETS until Jan. 19.

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.

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.

Sign up for Safety+Health's free monthly email newsletters and get the news that's important to you. Subscribe now

“We know the path forward to finally end this pandemic involves getting everyone vaccinated,” Sen. Patty Murray (D-WA), chair of the Health, Education, Labor and Pensions Committee, said in statement. “We should all be working toward that goal, not against it. After all we have lost and all the hard work we have done to rebuild, we must not throw our economy, our communities and American lives into jeopardy by sabotaging our pandemic response.

“When you are fighting a fire, you don’t just stop in the middle and turn off the water. But that’s exactly what this resolution would do. It would take away one of the most important tools we have given OSHA to protect workers, in the middle of a pandemic when we need it most.”

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.”

Post a comment to this article

Safety+Health welcomes comments that promote respectful dialogue. Please stay on topic. Comments that contain personal attacks, profanity or abusive language – or those aggressively promoting products or services – will be removed. We reserve the right to determine which comments violate our comment policy. (Anonymous comments are welcome; merely skip the “name” field in the comment box. An email address is required but will not be included with your comment.)

Title

Hoosiersmoker
December 9, 2021
Senator Murray has a point that we need to continue to move forward and protect the progress we have made but accepting a broad sweeping mandate for people to have a medical procedure is without doubt an overstepping of the authority and function of the government and certainly NOT the only way to slow and stop the pandemic. OSHA proposed the ETS, an agency that recently made their own changes to incentivize reporting and illegalize "whistleblowing" to empower employees to act and move toward safer workplaces. To mandate a vaccination and threaten to penalize companies for not complying is the opposite of some of their most recent improvements. The administrative costs alone could wipe out millions of just over 100 employee businesses. If the point is to promote and protect the economy, how does threatening the backbone of our economy - Small business - accomplish that?

Title

Brian
December 10, 2021
Per the FDA it is not known whether the vaccine protects against transmissibility. I would argue that it is known and it does not stop transmission at all but for arguments sake lets take them at their word. What would be the point of mandating a vaccine that does not stop transmission? The important words i see are "hoped" and "not yet known" See excerpt Pasted from the FDA website below. Q:If a person has received Comirnaty, will the vaccine protect against transmission of SARS-CoV-2 from individuals who are infected despite vaccination? A:Most vaccines that protect from viral illnesses also reduce transmission of the virus that causes the disease by those who are vaccinated. While it is hoped this will be the case, the scientific community does not yet know if Comirnaty will reduce such transmission.

Title

Name
December 16, 2021
With a quick search on the internet you can find dozens of FDA approved drugs that are later recalled due to their serious and deadly side effects, some were after many years on the market. Without long term testing there should not be a mandate that would require someone to submit to. A serious health issue years from now is still a serious health issue.

Title

IslesFan
December 29, 2021
This is not a vaccine mandate. The rule says either vaccinate OR testing and mask. Doing absolutely nothing to protect others is the option not allowed.