January 20, 2022
EPPC scholars Roger Severino, Rachel N. Morrison, Dr. David Gortler, and Dr. Aaron Kheriaty have submitted a public comment opposing finalization of OSHA’s rule that would mandate COVID-19 vaccination in workplaces.
On January 13, the Supreme Court held that OSHA acted without Congressional authority when it issued an Emergency Temporary Standard (ETS) requiring the vaccination or testing of 84 million Americans, selected simply because they work for employers with more than 100 employees during the era of COVID. As part of the ETS, which would expire in six months, OSHA issued an interim final rule that, once finalized after receiving public comments, would bind employers and employees indefinitely.
The scholars’ comment details a number of legal and policy reasons why OSHA must abandon the rule, including that the proposed rule:
- Was issued for political, not emergency reasons
- Has not undergone a meaningful economic analysis
- Does not address the waning efficacy of the COVID-19 vaccine
- Fails to consider and weigh known health risks of vaccination
- Does not account for how natural immunity undercuts the rule
- Does not comply with federal civil rights and religious freedom laws
The comment says, “Although this wasn’t a close question before the Supreme Court ruled, it certainly became a closed one after.” The EPPC scholars argue that OSHA has “no other option but to promptly withdraw the ETS and abandon its efforts to issue a final rule” and that “we advise for OSHA to get out of the public health business altogether and stick to its original workplace health and safety mission.”
In conclusion, the scholars write:
“OSHA should not mandate vaccination or testing. Employers should not be forced to coerce their employees to undergo a medical intervention, potentially against the advice of a doctor or in violation of an employee’s religious beliefs or conscience, or face intrusive weekly testing indefinitely. Mandating vaccinations for all does not consider the risk-benefits calculus for any individual person, and the attendant negative impacts on employees.
“We urge the Biden administration and OSHA to abandon its unlawful and unprecedented intrusion into intervention in the American economy and personal health decisions by immediately withdrawing the ETS, not issuing a final rule, and not issuing a future rule mandating workplace vaccination.”
Roger Severino is an EPPC Senior Fellow, Director of EPPC’s HHS Accountability Project, and former Director for the Office for Civil Rights at the Department of Health and Human Services (2017–2021). Rachel N. Morrison is an EPPC Fellow and a former attorney at the Equal Employment Opportunity Commission. Dr. David Gortler is an EPPC Fellow and a former FDA medical officer who was appointed as senior advisor on drug safety to the FDA Commissioner. Dr. Aaron Kheriaty is an EPPC Fellow, Director of EPPC’s program on Bioethics and American Democracy, and a physician and bioethicist.