OSHA ETS Implies No Vaccine Mandate; 5th Circuit Court Orders Pause

  • by:
  • Source: UncoverDC
  • 09/19/2023

The Occupational Safety and Health Administration (OSHA) published its much-anticipated "COVID-19 Vaccination and Testing Emergency Temporary Standard" (ETS) for private employers on Friday, Nov. 5, 2021. Revealed in early September by Joe Biden under the pretense of an Executive Order (EO), his "Vaccine Mandate" intends to force employers with 100 or more employees to demand they get the experimental jab. As expected, the ETS was immediately met with a flurry of lawsuits, and on Saturday, the Fifth Circuit Court of Appeals swiftly halted the rule pending further litigation. Notably, OSHA—tasked by the president to devise the vaccine command—declared the option for weekly testing and masking in the first paragraph of its ETS. The move suggests the government understands it cannot legally mandate that large employers require the COVID-19 shot. An OSHA Summary of the ETS states: 

"The ETS establishes binding requirements to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 in the workplace." 

Screenshot / Federal Register

The ETS, if allowed to prevail, will cover two-thirds of the nation's private-sector workforce. In the 26 states and two territories with OSHA State Plans, the ETS will also cover public sector workers employed by state and local governments, including educators and school staff. The rule, set to take effect immediately, gives employers thirty days—until Dec. 5, 2021—to comply with all requirements except testing for employees who are not fully vaccinated, which has a compliance deadline of Jan. 4, 2022. After that, weekly testing will be required for unvaccinated employees.

Temporary Stay by Fifth Circuit Court

In issuing Saturday's ruling—which temporarily blocked Biden's "mandate"—the Fifth Circuit Court of Appeals stated in the brief order, "Because the petitions give cause to believe there are grave statutory and constitutional issues with the mandate, the mandate is hereby STAYED pending further action by this court." The petitioners, which include multiple businesses and the states, said the ETS by OSHA exceeds OSHA's authority under the Occupational Safety and Health Act, which is limited to workplace-related hazards. Instead, they assert COVID-19 is a "society-wide danger." The petitioners' lawsuit wrote in an emergency motion:

"In an attempt to impose a nationwide vaccination mandate without approval from Congress, the executive branch has couched its COVID-19 vaccine mandate as an emergency workplace rule affecting nearly 100 million Americans. But the ETS is neither a workplace rule nor responsive to an emergency."

Screenshot / Bloomberg Law

The court ordered the Biden administration to respond to the petitioner's motion for a permanent injunction by 5 pm Monday, Nov. 8. The petitioners shall file any reply by 5 pm on Tuesday, Nov. 9.

Indeed, a growing list of private plaintiffs and governors, including Florida's Gov. Ron DeSantis, declare the OSHA ETS rule is not consistent with the U.S. Constitution and is not legally authorized through congressional statutes. In a press conference to discuss the ETS (video above), Gov. DeSantis remarked, "The federal government can't just unilaterally impose medical policy under the guise of workplace regulation." He added, "this is an attempt to shoehorn policy, through the bureaucracy in a way that will be difficult for some of these individuals and private parties to resist. I think it's interesting that this is being done under the guise of emergency power."

Grave Danger: The Rationale for the ETS

The almost 500-page document, which took nearly two months to construct, lists two criteria as justification for the ETS—'Grave Danger' and the 'Need for the ETS.' As outlined extensively in "Section III Rationale for the ETS," of the rule, 'Grave Danger' represents the allegedly inevitable danger that exists to and from those not vaccinated against COVID-19. The term' grave danger' is mentioned nearly 150 times in the section. Still, even though the focus is on the unvaccinated, the ETS makes clear that vaccinated employees are not completely safe. The ETS points out, "The exclusion of vaccinated workers from this grave danger finding does not mean that vaccinated workers face no risk from exposure to SARS-CoV-2," adding, "breakthrough infections do occur, and vaccinated individuals can still transmit the virus to others. In some cases, the level of risk to vaccinated workers may even rise to the level of a significant risk."

The second reason given to justify the ETS is the 'Need for the ETS.' According to OSHA, the most effective and efficient workplace control available to protect unvaccinated workers from the risk of contracting COVID-19 is vaccination. Furthermore, the rule states for employees who choose not to get the jab, "this ETS is necessary to protect workers who remain unvaccinated through required regular testing, use of face coverings, and removal of infected employees from the workplace."



What Does the ETS Require of Employers?

The White House Fact Sheet explains that covered employers must develop, implement, and enforce a COVID-19 vaccination policy. Furthermore, "given that vaccines are safe, free, and the most effective way for workers to be protected from COVID-19 transmission at work, the ETS does not require employers to provide or pay for tests." Still, employers may be required to pay for testing due to laws or collective bargaining agreements. The Fact Sheet outlines what it expects of large employers to meet the ETS requirements: 

  • Employees must be vaccinated by Jan. 4, 2022;
  • Within 30 days, covered employers must provide each employee information about the new OSHA rule, workplace policies and procedures, vaccination efficacy, safety and benefits, protections against retaliation and discrimination, and laws that provide for criminal penalties for knowingly supplying false documentation.
  • Employers must determine the vaccination status of every employee, obtain acceptable proof of vaccination, maintain a tracking system of each employee's vaccination status.
  • Employers must make available for examination and copying to an employee or an employee representative with written authorization, an employee's COVID-19 vaccine documentation, any COVID-19 test results, and the aggregate number of fully vaccinated employees along with the total number of employees at that workplace.
  • Unvaccinated employees must present a "verified" negative test on (at least) a weekly basis. The ETS provides specifications on the variety of tests that comply with this requirement.
  • Starting Dec. 5, 2021, employers must pay employees for the time taken off from work to get vaccinated and, if needed, to recover from any side effects.
  • Employers must ensure unvaccinated employees wear masks at all times in the workplace. Employers are not required to provide face masks.
  • Employers must require each employee to immediately notify the employer if and when they receive a positive COVID-19 test or are diagnosed with COVID-19 by a licensed healthcare provider.
  • Employers must adhere to a significant amount of reporting and recordkeeping.

Who is Considered a "Large" Employer?

Employees in the United States have been working in various ways throughout the pandemic. In determining what employees count towards 100 employees, the ETS says not to count Independent Contractors but to count part-time employees. If you have seasonal employees, the total at the effective date of the rule applies. If at any time you go above or below 100, adjust the count accordingly. Businesses with multiple locations should count the total number of employees to determine if it reaches 100. At multi-employer worksites, each employer should count its own employees. For employers with 100 or more employees but with some employees working from home, the rule standards apply to the employees (including part-time employees) who actually work in the office.


What About Natural Immunity?

A study by the National Institutes of Health (NIH) confirmed that natural and "long-term" immune responses—antibodies, T cells, and B cells—exist after recovering from COVID-19 and have overwhelmingly been found in each individual who recovers from SARS-CoV-2. An understanding held by many medical experts, the study also revealed that "promisingly, their [antibody] levels remained fairly stable over time, declining only modestly at 6 to 8 months after infection." Meanwhile, numerous studies suggest that COVID-19 vaccine efficacy, especially after reinfection, continues to wane. 

Curiously, the ETS merely mentions the phrase 'natural immunity' in passing twice; both enclosed within references purportedly used to support the Biden vaccine policy agenda. The first mention is tied to an Aug. 26, 2021, medRxiv preprint titled "Comparing SARS-CoV-2 natural immunity to vaccine-induced immunity: reinfections versus breakthrough infections." Interestingly, the study concludes that "natural immunity confers longer-lasting and stronger protection against infection, symptomatic disease and hospitalization caused by the Delta variant of SARS-CoV-2, compared to the BNT162b2 two-dose vaccine-induced immunity." 

The second mention of 'natural immunity' is tied to a Sept. 21, 2021, medRxiv preprint titled "Equivalency of Protection from Natural Immunity in COVID-19 Recovered Versus Fully Vaccinated Persons: A Systematic Review and Pooled Analysis." Remarkably, the study also favored natural immunity, concluding:

"While vaccinations are highly effective at protecting against infection and severe COVID-19 disease, our review demonstrates that natural immunity in COVID-recovered individuals is, at least, equivalent to the protection afforded by full vaccination of COVID-naïve populations. There is a modest and incremental relative benefit to vaccination in COVID-recovered individuals; however, the net benefit is marginal on an absolute basis. COVID-recovered individuals represent a distinctly different benefit-risk calculus. Therefore, vaccination of COVID-recovered individuals should be subject to clinical equipoise and individual preference."

Keeping in step with a CDC study published on Nov. 5, 2021—the same day as the ETS—instead of 'natural immunity,' the ETS uses the phrase "infection-induced immunity" when explaining the conclusion that vaccine immunity is superior to natural immunity in COVID-19. The ETS references three specific studies that indicate "a considerable number of individuals who were previously infected with SARS–CoV–2 do not appear to have acquired effective immunity to the virus" and therefore face grave danger. Attributing several studies, the ETS postulates:

"These studies show that infection-induced immunity may not equal the protection afforded by vaccination and that vaccination greatly improves the immune response of those who were previously infected." 

What About Those Who Lost Their Job Before Release of ETS?

A long list of governors or state attorney generals has already publicly declared their opposition to the government's federal vaccine mandate. And as previously mentioned, the admission that the ETS grants the option for testing instead of injection reinforces that the Biden administration's directive is undoubtedly not a "Vaccine Mandate." In addition to the case in the Fifth Circuit, lawmakers across the country have filed lawsuits against the OSHA vaccine ETS in three separate circuits.

Armed with the momentous knowledge that the vaccine is not mandatory, additional lawsuits are sure to come. Hundreds of thousands of Americans have already lost their jobs after refusing to receive the experimental vaccine—what happens to them now? Furthermore, with an alternative option to the jab, what support is available to individuals who got the shot because they felt compelled to do so to ensure their employment wasn't terminated? What about employees injured from the jab after being injected to keep their job—who is looking out for them?

How Long Will the ETS Remain in Effect and What's Next?

The ETS—intended to "preempt inconsistent state and local requirements, including those that ban or limit employers' authority to require vaccination, face-covering, or testing, regardless of the number of employees"—will remain in effect for six months, or until May 5, 2022. Pursuant to the Occupational Safety and Health (OSH) Act, the ETS becomes the proposal for a permanent standard. If no permanent standard is enacted before May 5, 2022, the ETS expires. Comments on whether the ETS should become a permanent standard are due on Dec. 5, 2021. *Click HERE to leave a comment.

As illuminated by Gov. DeSantis, the deliberate lack of consideration for natural immunity is alarming. Likewise, studies funded by Big Pharma that support the vaccine narrative are highly suspicious. Especially considering U.S. pharmaceutical companies are expected to collect more revenue from COVID-19 vaccines in the third quarter of 2021 than they did in the entire first half of the year, and that profit is expected to grow. DeSantis asserts that the current ETS rules directed by Biden are just the tip of the iceberg when foretelling what lies ahead for future vaccines policies. In a somber prediction, he warns:

"Individuals who have gone through a normal vaccination series for COVID will be determined to be unvaccinated very soon. They will tell you you're unvaccinated, and you have to get a booster. Otherwise, you could potentially face loss of employment or other types of penalties. They're already asking for feedback on how to do this going forward. It's going to get more restrictive. There will be more power brought to bear going forward if we don't stand up now and fight back." 

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