Robert J. O’Hara, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in Law360 Employment Authority, in “Is COVID-19 a ‘Grave Danger’? If Not, Biden Rule May Fall Flat,” by Vin Gurrieri. (Read the full version – subscription required.)

Following is an excerpt:

The U.S. Department of Labor undercut one potential line of attack to its workplace vaccination-or-testing rule by allowing medical and religious exemptions, but proving that COVID-19 is a "grave danger" that empowers the agency to issue emergency standards may be an uphill climb.  The Sixth Circuit recently won a lottery held by the U.S. Judicial Panel on Multidistrict Litigation to hear a consolidated series of challenges to the Nov. 5 emergency temporary standard issued by the DOL's Occupational Safety and Health Administration. The ETS requires businesses with more than 100 employees to mandate COVID-19 vaccinations or have workers submit to weekly tests and wear masks at work.

The emergency rule from OSHA was met immediately with dozens of legal challenges across the country by Republican-led states, religious organizations, companies and individuals. A Fifth Circuit panel subsequently froze the ETS and then affirmed and explained that decision after some rapid-fire briefing from the parties but before the circuit court lottery was held.

Before it is able to rule on the regulation's validity, which will apply to circuit courts nationwide, the Sixth Circuit will have to wade through a thicket of constitutional and statutory issues. The one that could be preeminent in its analysis, attorneys say, is whether OSHA was even authorized to issue an ETS — a type of regulation the agency can issue that takes effect immediately to address "grave dangers" to workers. …

Here, [attorneys] preview the legal questions the Sixth Circuit will soon confront. …

Is Any 'Grave Danger' Workplace Related?

Even if the Sixth Circuit buys that the global coronavirus pandemic qualifies as a grave danger, OSHA must also show that the danger is connected to the workplaces the agency regulates, attorneys say. …

Robert O'Hara, a member at Epstein Becker Green, similarly said that "there has to be a nexus to the occupational disease" since OSHA's charter specified that it safeguards workers from injury or occupational illness.

"So they're basically couching this as an occupational disease in order to slip it under the statute, which frankly makes absolutely no sense factually because a … significant percentage of [COVID-19] cases in this country are not work related," O'Hara said. "Them coming out and saying, 'We're going to regulate the workplace in this manner,' it's more than the workplace, it's a public health matter. So I think [OSHA] is going to have a significant challenge there."

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