If OSHA Rules Employee Vaccine Is Mandatory, Which “Rule” Would Stand: State or Federal Law?

This question is on the lips of every unvaccinated American! Two states’ governors have already thumbed their noses at the “pending” Biden vaccine mandate declaring not only with they NOT enforce such a mandate, but will preclude any agency or company within their states from mandating ANY employee vaccination contingency for employment.

Multiple companies around the nation quickly fell in line and issued such mandates for employees. Multiple courts in multiple jurisdictions have already weighed in on lawsuits challenging these mandates. Decisions vary, as one can imagine. Plainly stated, there are NO clear-cut legal conclusions that can be easily found to support either side of this issue. But if one listens to President Biden, Democrat leaders in Congress, and even White House Press Secretary Jen Psaki, all that’s necessary for ANY presidential mandate to bear the unfettered backing of U.S. Law is for it to be stated or written and released! But that is simply not the case — no matter what President Biden has represented in that television press announcement or any subsequent briefs or conversations.

The Basis For COVID-19 Vaccine Mandates

President Joe Biden uses what one court opinion called “the most dramatic weapon in OSHA’s enforcement arsenal” to back up his COVID-19 vaccine mandate for employers with 100 or more workers.

But relying on this bureaucratic weapon could be a risky strategy in the face of litigation threats since courts have struck down all or part of the Occupational Safety and Health Administration’s emergency regulations in four of the six legal challenges so far.

Biden mentioned OSHA’s role Thursday in a speech promoting the need for Americans to get COVID-19 vaccinations during a trip to Elk Grove Village, Illinois, near Chicago.

“The unvaccinated overcrowd our hospitals [and] overrun emergency rooms and intensive care units,” Biden told his audience. “The unvaccinated patients are leaving no room for someone with a heart attack or a cancer operation and so much more because they can’t get into the ICU, can’t get into the operating room.”

“The unvaccinated also put our economy at risk because people are reluctant to go out,” the President said.

Biden said the Labor Department, which includes the Occupational Safety and Health Administration, would “shortly issue an emergency rule” to enforce the vaccine mandate for Americans whose employers have more than 99 full-time workers on the payroll.

The President, who asked for the OSHA regulation on Sept. 9, said Thursday that a previous mandate imposed on federal employees had a significant impact.

“Here’s the deal: These requirements are already proving that they work,” Biden said. “Starting in July, when I announced the first vaccination requirement for the federal government, about 95 million eligible Americans were unvaccinated. Today, we [have] reduced that number to 67 [million] eligible Americans who aren’t vaccinated.”

The President also said that public and private sector employers already imposed vaccine mandates, including colleges and universities, spurred a dramatic increase in COVID-19 vaccinations.

“Vaccination requirements result in more people getting vaccinated,” Biden said.

Three Conditions in Law

U.S. deaths attributed to COVID-19 in 2021, at 353,000, already have surpassed COVID-19 deaths for the entirety of 2020, when a total of 352,000 died from the disease caused by the new coronavirus. Before OSHA issued an emergency COVID-19 regulation for health care workers in June, the agency’s last emergency regulation was struck down in court in 1984.

Under the 1970 statute creating the Occupational Safety and Health Administration, the agency must publish a long-term rule within six months to supersede any temporary emergency standard. Congress passed, and President Richard Nixon signed the Occupational Safety and Health Act, which established OSHA as part of the Labor Department to regulate workplace safety. The law explicitly allows OSHA to impose immediately an emergency, temporary standard – which bureaucrats call an ETS – in a process that bypasses the sometimes lengthy procedures and reviews in rulemaking.

However, the law also places three conditions on the agency’s capacity to impose such a regulation, according to a recent study by the Congressional Research Service, which produces reports for Congress.

  1. The first condition is that employees are being exposed to “grave danger.”
  2. The second is that an emergency standard from the government is necessary to protect employees from such danger.
  3. The third is that the rule is feasible for employers to implement.

Under the Administrative Procedure Act, an executive branch agency must allow 30 days for public comment after placing a proposed regulation in the Federal Register. Objectors to the regulation may call for a public hearing.

Vulnerable in the Courts’

In 1983, OSHA issued a temporary emergency standard lowering the permissible exposure limit to asbestos. The agency claimed that 80 workers would die from exposure to the substance over six months if the rule weren’t in place.

The 5th U.S. Circuit Court of Appeals did not buy the government’s argument, however. In the case of Asbestos Information Association v. OSHA, the federal appeals court invalidated OSHA’s emergency temporary standard, partially because the agency did not provide sufficient support for its claim.

Former Labor Secretary Eugene Scalia told Fox News that the Biden administration should allow public comment given significant questions about the COVID-19 vaccine rule.

“In terms of using this emergency process with no comment, it has been used for benzine and asbestos. I believe in both of those cases, they were not able to sustain the rule,” Scalia said Sept. 13.

Scalia, son of the late Supreme Court Justice Antonin Scalia, added:

These emergency standards in the past, when they’ve been adopted by the Labor Department, have proved to be very vulnerable in the courts, which I think is part of the reason you’re hearing the criticisms now. Workers and businesses have a lot of questions about how this is going to be implemented, what the exact requirements are going to be, and it would be better if the Labor Department would give people a chance to provide their input.

Establishing ‘Grave Danger’

In the 1984 asbestos case, the 5th Circuit determined that OSHA would have fallen short of proving the necessity for the emergency standard, primarily because it duplicated the agency’s existing requirements on respirators.  The appeals court ruled that “fear of a successful judicial challenge to enforcement of OSHA’s permanent standard regarding respirator use hardly justifies resort to the most dramatic weapon in OSHA’s enforcement arsenal.”

On average, OSHA regulations take 39 months to be fully implemented, according to a 2012 Government Accountability Office sampling of 59 rules.

If the goal is to push an executive branch mandate for COVID-19 vaccines in many workplaces, it’s understandable why the Biden administration chose this route. But for the vaccine mandate to hold up in court, the administration must meet the burden of proof based on the law’s requirements.

According to the Congressional Research Service, the meaning of “grave danger” to employees is not defined either in statute or regulation. The lack of a definition opens the way for the courts to decide on a case-by-case basis.

Even if the federal government can prove a “grave danger” to employees, it must establish the necessity of bypassing the regular rulemaking procedures.

OSHA put nine emergency regulations in place between 1971 and 1983. According to the Congressional Research Service, most dealt with workplace hazards such as asbestos, carcinogens, and chemical exposure. A 1976 rule governing “diving operations” was the subject of a lawsuit by a company that works in deep-water ports.

Of those nine emergency rules, only three were not challenged in court. In a 1973 case on an emergency regulation regarding 14 carcinogens, the court upheld the rule for 12 and vacated it for the two others. That same year, the courts vacated an emergency regulation on pesticides containing organophosphorus particles.

In all, courts vacated four of OSHA’s emergency standards and halted enforcement of two in 1976 and 1977.

What the Law Allows

Congress did not grant the Occupational Safety and Health Administration the authority to mandate vaccines, according to a pending report by two Heritage Foundation researchers -Doug Badger, senior fellow for domestic policy studies, and Paul Larkin, a senior legal research fellow. (Heritage is the parent organization of The Daily Signal.)

“If you look at the statute itself, it talks about toxic substances or chemicals employees would be exposed to,” Badger told The Daily Signal in an interview Thursday. “I’ve heard this called a testing mandate with a vaccine opt-out. But either way, the statute doesn’t allow OSHA to mandate either testing or a vaccine.”

The pending report from Badger and Larkin notes OSHA adopted a rule on bloodborne pathogens that include requiring employers to offer a vaccine against the bloodborne pathogens, known as the Hepatitis B vaccine. However, that rule doesn’t require medical workers to get vaccinated, and an employee may opt out after signing a statement that they are aware the vaccine is being offered.

The report adds:

Moreover, in 2000, Congress passed the Needlestick Safety and Prevention Act to force OSHA to adopt stricter regulations to prevent the workplace transmission of bloodborne pathogens. Notably, Congress did not demand that anyone be vaccinated against Hepatitis B in addition to or in lieu of the newly imposed additional safety precautions.

“In any case, Congress explicitly authorized that vaccination policy,” Badger said, in contrast to what Biden is attempting to do.


Here’s the danger ahead for President Biden. He has already drawn the proverbial “line in the sand” between the American People and the White House. He did so with little (if any at all) discussion with Constitutional experts regarding IF COVID-19 vaccine mandates could withstand legal challenges that are certain if such a rule is issued. But, more importantly, that “line in the sand” is a “slap in the faces” of every American.

In 1986 as part of the Balanced Budget Act passed by Congress, the “HIPPA Rule” was set in place to protect Americans regarding ALL information about their individual health information. This regulation requires you to fill out HIPPA release forms every time you visit a doctor. You legally authorize the doctor and/or his staff to make your specific health information to others involved in your treatment. Without that, your medical records could legally go NOWHERE or even be discussed with NO ONE but your treating physician.

“How does that pertain to a vaccine mandate?”

It may NOT be in the same bucket as the HIPPA Rule. But it certainly draws a line between American individuals and who can legally obtain any American’s health information of any kind without the expressed authorization to do so in writing.

Additionally, the Attorneys General and well over a dozen states have already declared their readiness to file lawsuits against the Biden Administration immediately upon any Rule, Presidential Executive Order, or even a law passed in Congress that mandates COVID-19 vaccinations for any Americans as a pre-condition to any and all provisions guaranteed in the U.S. Constitution.

Let’s be practical and honest: even IF such a mandate is issued by either OSHA, any state government, or even by President Biden or Congress, any such regulation will initiate immediate and massive numbers of federal lawsuits based on the violation of an individual’s right. And such litigation would undoubtedly block implementing any such order, rule, or law for at least two years, if not longer.

NOTE: It is probable that the President making his television statement about his “pending” vaccine mandate that “is” to be implemented by OSHA is little more than a press release to scare unvaccinated Americans into going ahead and getting a vaccination. If so, it’s been successful! Millions of Americans have done just that.

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