Here it is: OSHA finally issues vaccine mandate for large companies -- but it won't take effect until next year

AP Photo/Andrew Harnik

No wonder it took them two months to publish the new rule. It’s 490 pages long.

May I suggest the three-page fact sheet for your reading pleasure instead?

The newsiest part of today’s announcement is that the mandate won’t take effect immediately. It’s postponed until January 4, which the White House claims will help “streamline implementation and make it easier for business and employees to comply with the requirements,” per CNN. In truth, they postponed it because companies warned them that having to lay off anti-vax employees right before the holidays won’t be good for business, particularly at a moment when supply chains are already disrupted.

Having just been obliterated at the polls, Biden and his party wisely concluded that they didn’t need one of his policies taking the blame for ruining Thanksgiving and Christmas too.

Two rules were issued this morning. One is the OSHA vax-or-test mandate for businesses, requiring people who work for companies with 100 or more employees to either get their shots or get tested weekly (and wear a mask on the job.) The other is a rule from CMS aimed at health-care workers specifically. There’s no testing option in that one; if you want to work around sick, vulnerable people, it’s vaccination or bust.

The announcement also makes clear that the vaccine rules will preempt any state or local laws aimed at banning vaccine mandates or other measures to limit the spread of Covid-19. Texas and Florida have been among the states that have been attempting to pass their own laws to restrict such mandates.

“Both OSHA and CMS are making clear that their new rules preempt any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing,” a fact sheet outlining the rule said in part.

A second senior administration official, discussing the rules legal authority, said that “the OSH Act gives OSHA the authority to act quickly in an emergency where the agency finds that workers are projected to a grave danger and a new standard is necessary to protect them.”

Interestingly, some analysts believe that the mandate will have a positive effect on hiring, even with some anti-vaxxers quitting in protest. Some workers are still at home, living off the luxe federal unemployment benefits they received during the first 18 months of the pandemic and afraid to return to crowded workspaces where they might be infected. A vax-or-test rule will give them more confidence that it’s safe. But that won’t happen overnight, which means the threat of labor shortages during the holidays would remain if the mandate weren’t postponed for a few months.

This bit from the fact sheet explaining the rationale for the rule is interesting too:

Unvaccinated Workers Face Grave Danger:

Unvaccinated workers are much more likely to contract and transmit COVID-19 in the workplace than vaccinated workers. OSHA has determined that many employees in the U.S. who are not fully vaccinated against COVID-19 face grave danger from exposure to COVID-19 in the workplace. This finding of grave danger is based on the severe health consequences associated with exposure to the virus along with evidence demonstrating the transmissibility of the virus in the workplace and the prevalence of infections in employee populations. The evidence for the finding of a grave danger is in Section III.A. of the ETS preamble.

A finding of “grave danger” is a requisite for OSHA to issue an emergency temporary standard about workplace health rules. It’s why the rule contains an exception for employees who don’t work around others (i.e. work from home) or who work outdoors exclusively. They’re at no risk of infection from their colleagues so they can’t be said to be in grave danger.

But note whose health the agency claims to be concerned with in its rule: Unvaccinated workers, not their vaccinated colleagues who are at risk of being infected by them in a shared indoor space. Essentially, the feds are taking a “for your own good” approach to justify their mandate, forcing the unvaxxed to get immunized to mitigate their own personal risk of illness. They could have come at this from the other way, arguing that because the unvaxxed are more likely to infect others, have higher viral loads, etc, they need to be vaccinated to reduce the risk they pose to all of their colleagues.

“For your own good” is an awfully slippery slope for federal health regulations. Obesity is a “grave danger” to the health of an obese person but not to the health of those around him. Based on today’s standard, shouldn’t OSHA be able to set workplace rules aimed at preventing overweight employees from gaining weight on the job? No vending machines at work, for instance? Or no access to vending machines if you’re above a certain BMI?

In choosing its rationale for the mandate, I assume OSHA felt boxed in by the “grave danger” standard. If the vaccines work then can a vaccinated person truly be said to be in “grave danger” from an unvaccinated colleague? Sure, the latter may pass on the virus to the former, making him sick as a dog for days. But if the vaccine minimizes his risk of landing in the hospital, how “grave” can the danger be?

SCOTUS will have fun teasing out the logic behind “grave danger” in this rule, assuming it ever comes before the Court. Which brings me to a question: What if it doesn’t? What are the odds that the mandate … never takes effect?

I think they’re small but not zero, especially after the beating Democrats took on Tuesday night. One virtue of postponing the mandate until January 4 is that it lets the White House sit back and watch how the pandemic proceeds in December. Last year cases soared during the month of November, portending a brutal winter. But cases declined in October of this year, raising the tantalizing possibility that the winter won’t be as bad as everyone fears. Nearly 70 percent of American adults are vaccinated, after all, and a few million young children will join them in the coming weeks. Natural immunity across the population is obviously far greater than it was a year ago at this time. We’ll probably see a spike in November and December but maybe with notably less severe illness than last winter’s spike produced.

If we do, will the White House seize on that as an excuse to suspend the mandate indefinitely before it takes effect?

Before Tuesday, I would have said no. After Tuesday, with Dems newly terrified that they’re out of touch with an electorate that’s more worried about inflation and economic sluggishness than COVID, I think the chances have risen. Bear in mind that the OSHA rule has already served its purpose to some extent irrespective of whether it’s enforced. It gave cover to large companies to impose their own vaccine mandates and those mandates can remain in place (except in Texas) no matter what happens with the federal rule. Meanwhile, even the media and the public-health expert class have begun to wonder aloud what the administration’s endgame is with respect to the pandemic. If COVID’s never going away, if nearly three-quarters of adults are vaxxed, and if vaccines are now available for all but the youngest children, isn’t that … victory? Or as close to victory as we’re going to get?

The federal mandate enjoyed majority support in polls when it was first announced in September, but not a strong majority — usually on the order of 54/46. With economic anxiety rising and surpassing COVID as a public priority, it may have slipped in popularity since then. Why would the White House want to continue to associate itself with unpopular heavy-handed precautions with huge potential to disrupt jobs when it could declare “mission accomplished” instead and urge everyone to get back to work? Especially if November and December bring more supply-chain problems, making avoidable labor shortages even harder to justify?

Biden won’t want to suspend the OSHA mandate after having invested so much political capital in it, if only for face-saving reasons. But a mild pandemic in December would give him an excuse to pivot: “It looks like we’ve finally turned the corner on COVID, so in the interest of keeping as many Americans on the job as possible we’re going to delay the mandate further.” The OSHA fact sheet even alludes to that possibility, saying, “Where OSHA finds a grave danger from the virus no longer exists, or new information indicates a change in measures necessary to address the grave danger, OSHA may update this ETS, as appropriate.” That’s all it would take for the White House to reverse course, a finding that the “grave danger” has abated. Which is possible, if unlikely, by January 4.