28 Days Later, The Biden Administration Still Has Not Released An OSHA Employer Vaccine Mandate

On September 9, President Biden called on OSHA to implement a vaccine mandate for employers. In the ensuing days, I wrote several blog posts that parsed a non-existent rule (1, 2, 3, and 4). I fully expected the rule to be issued imminently, which would trigger a mad dash to the courts. Yet, 28 days later, we still do not have a proposed rule. What is going on? Where is the urgency?

I have a few tentative thoughts. First, OSHA planned to adopt an Emergency Temporary Standard (ETS). This fast-track process bypasses the usual notice-and-comment process. Perhaps the agency determined that it needs more time to make its rule iron-clad. Admittedly, this process is very complicated. And the need for deliberation counsels in favor of seeking public comments, not rushing through the policy unilaterally. Ultimately, this delay undermines the case for emergency action.

Second, thankfully, COVID numbers have declined precipitously over the past month, as the Delta surge has peaked. And vaccine rates have increased in the absence of a federal mandate. The longer this process takes, the less essential a federal mandate becomes.- READ MORE