Vaccine Mandate’s Application To Mariners Is Unclear

After 21 months of the coronavirus pandemic, the Occupational Safety and Health Administration has issued an Emergency Temporary Standard (ETS) order to minimize the spread of the COVID-19 virus under its authority to regulate workplaces.

The vaccine order was announced in September. It took effect November 5 when it was published in the Federal Register, but it was suspended the next day by a Fifth Circuit three-judge panel after a court challenge by a Louisiana supermarket chain and six employees of a Texas company that makes kitchen ventilation systems. The order blocks the mandate “pending expedited judicial review.”

The vaccine mandate applies only to employers with 100 or more employees, which leaves smaller towing companies with fewer than 100 employees unaffected. It also does not apply to employees working from home or working “exclusively outside.” It requires that regulated companies either adopt a mandatory vaccination policy for all employees or require masking and testing for the virus once a week for all employees — measures that some businesses are already doing.

In its November 5 newsletter, The American Waterways Operators said, “While the rule incorporates several key recommendations made by AWO in communications to OSHA and the Coast Guard and a meeting with the White House Office of Management and Budget (OMB) last week, the ETS does not clarify its application to mariners on Coast Guard-inspected vessels nor how testing requirements might be modified to better fit the live-aboard vessel environment. The Coast Guard and OSHA are continuing to discuss these issues, and the Coast Guard hopes to be able to provide clarification as soon as next week.”

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Caitlyn Stewart, AWO vice president-regulatory affairs, told The Waterways Journal, “We’re working hard to make sure that both OSHA and the Coast Guard understand the unique onboard vessel work environment and urge them to clarify the applicability of the standard for mariners working on inspected vessels.”

According to OSHA’s compliance timeline, by 30 days after publication all requirements other than testing for employees who have not completed their entire primary vaccination dose(s) must be fulfilled. By 60 days after publication (January 4), all employees must be tested who have not received “all doses required for vaccination.” 

OSHA said it has determined that the mandate could prevent 250,000 hospitalizations and 6,500 deaths. Since January 2020, about 745,000 American have died from the disease.

The rarely used ETS option allows OSHA to circumvent the normal lengthy rulemaking process. The White House said the policy is designed to “reduce the number of unvaccinated Americans by using regulatory powers and other actions to substantially increase the number of Americans covered by vaccination requirements.”

OSHA said it is also inviting comment on the rule because it is considering making it a final rule under Section 6(b) of the Occupational Safety and Health Act. It may update and/or revoke the rule if and when it finds there is no longer a public health threat from COVID-19, it said.

Challenged In Court

The plaintiffs in BST Holdings v. OSHA, represented by the Liberty Justice Center and Louisiana’s Pelican Institute for Public Policy, argue that the ETS order exceeds the agency’s authority under the Occupational Safety and Health Act of 1970. Even if it didn’t, they claim, empowering OSHA to issue such a sweeping order would exceed the federal government’s power to regulate interstate commerce. They also argue it would encroach on states’ prerogatives.  An OSHA publication asserts that the ETS pre-empts state law.

The plaintiffs argue that OSHA has exceeded its statutory authority, which is to regulate workplaces; that there is no general statutory authority for the federal government to protect public health, control communicable diseases or require vaccination. Instead, they argue, those duties are left to states. They argue further that OSHA has no authority to regulate actions that are not related to the workplace. They note that OSHA has been considering an “Infectious Diseases Regulatory Framework” since 2010 but has left it on the shelf. 

In granting the stay, the judges wrote that the ETS “give cause to believe there are grave statutory and constitutional issues with the mandate,” but didn’t specify what those issues might be.

The vaccine mandate faces additional legal challenges in the Fifth, Sixth, Eighth and 11th circuits from lawsuits by the attorneys general of 26 states.