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Congress Didn’t Give OSHA Authority to Impose Vaccine Mandates

The Occupational Safety and Health Administration is about to require 80 million working Americans to get vaccinated. You may be among them.

There’s just one catch: OSHA lacks the legal authority to impose a vaccine mandate. 

Declaring that his patience was “wearing thin” with unvaccinated Americans, President Joe Biden on Sept. 9 announced that OSHA would require companies with at least 100 employees to mandate that workers either get vaccinated or submit to weekly COVID-19 tests.

OSHA sent a draft mandate to the White House on Oct. 8. Once the White House completes its review, OSHA will issue the order.

And then get sued.

As we detail in our legal analysis, the courts will almost certainly strike down the OSHA vaccine mandate. Here are a few reasons why:

  • Congress did not place vaccines within OSHA’s purview. OSHA is establishing the vaccine mandate through an “emergency temporary standard.” This highly unusual process allows OSHA to bypass public notice and comment. Federal agencies, including OSHA, typically must submit major rules to public scrutiny before finalizing them.

To take the “emergency temporary standard” shortcut, the agency must persuade a court that workers are in “grave danger” and that it is “necessary” to protect them against ...