Individual states do not have the authority to opt out of the emergency temporary standard on workplace COVID-19 vaccines and testing expected to be released soon by the Department of Labor’s Occupational Safety and Health Administration, in spite of some governors’ claims to the contrary. That’s according to Jordan Barab, former OSHA deputy assistant secretary and former senior labor policy adviser to the House Committee on Education and Labor, who spoke Thursday at a webinar hosted by the National Council for Occupational Safety and Health.
In September, President Biden called on OSHA to develop a standard that would require employers of more than 100 workers to ensure that their workforces are fully vaccinated against COVID-19 or that employees produce a negative test at least weekly before coming to work. That standard is expected to be released any day.
Earlier this month, Texas Gov. Greg Abbott (R) issued an executive order prohibiting vaccine mandates in that state, and Florida Gov. Ron DeSantis (R) is poised to reject the Biden administration’s plan, even going so far as to ponder having his state sever ties with OSHA.
“The U.S. law is not ambiguous in this area,” Barab said. “We are one nation with one workplace safety and health agency that’s positioned throughout the country, in all 50 states. Governors and other state officials have no authority to ignore federal laws or regulations they don’t like.”
As with most OSHA mandates, he said, the emergency temporary standard related to COVID-19 vaccines and testing will be “largely self-enforcing,” with the expectation that most employers will do what they are supposed to do. OSHA will oversee compliance, Barab added, by looking at employer’s records from time to time about who has been vaccinated or tested, and what the employer’s written program looks like. OSHA can do that as a matter of routine inspection for compliance with other OSHA standards or in response to complaints from employees, he said.
