Bradley attorney Stephanie Gaston was quoted in Law360 about the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) orders from President Biden.
The OSHA ruling would require all private businesses with over 100 employees to mandate vaccinations for their workforces or have workers show a negative COVID-19 test at least weekly.
While the 100-worker cutoff could prove to be a thorny legal issue, the federal government might also have to defend its mandate on other fronts.
“In the past, emergency standards have been issued to address things like air contaminants, carcinogens, asbestos and benzene and in many cases those standards have been put to judicial review and either stayed or vacated,” Gaston said. “The Occupational Safety and Health Act requires OSHA to issue an ETS if the agency determines that employees are exposed to ‘grave danger’ from exposure to substances or agents determined to be toxic or physically harmful or from new hazards. So, employers challenging the ETS that will come as a result of Biden's mandate would have to show COVID-19 does not rise to ‘grave danger’ at this time and a vaccine or weekly [testing] mandate is not 'necessary' to protect workers.”
The original article was published in Law360 on September 28, 2021. (login required)