Biden’s OSHA Workplace Vaccine Mandate, Now Stalled in Court, Rejects the Layered “Swiss Cheese” Model for Covid Protection

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By Lambert Strether of Corrente.

Beginning in medias res, OSHA’s Emergency Temporary Standard (ETS) for Vaccination and Testing in the Workplace (PDF) was issued on November 5, 2021. On November 6, the U.S. Court of Appeals for the Fifth Circuit issued a stay; on November 11, the Fifth Circuit affirmed the stay in a 22-page opinion (BST Holdings, LLC v. Occupational Safety and Health Administration, No. 21-60845[1]). The Fifth Circuit’s case has now been consolidated with 34 other challenges at the Ohio-based 6th US Circuit Court of Appeal. In the meantime, the Fifth Circuit has directed that OSHA ‘take no steps to implement or enforce’ the ETS ‘until further court order,’ so the ETS is suspended. However, some businesses had gone ahead with implementation anyhow; were the ETS not in limbo, covered employers would be expected to have determined their employees vaccination status by December 5; the deadline for employees to receive their final vaccine dose or begin testing would have been January 4, 2022. Here is a summary of the ETS’s employer requirements from an insurance broker:

This ETS applies to all employers who have 100 or more employees and are as follows:

  • Employers must implement a COVID-19 vaccination policy that requires mandatory vaccination or allows employees to either get vaccinated or undergo weekly COVID-19 testing.

Note the “or.” The ETS, while coercive, does not require jabs as such:

  • Employers must determine the vaccination status for each employee, obtain acceptable proof of vaccination from vaccinated employees and maintain records and a roster of each employee’s
  • All employers must support vaccination by providing up to 4 hours of paid time to receive each dose and up to 2 days to recover from any side effects from each dose.
  • Employers must ensure that employees who aren’t fully vaccinated are tested at least weekly (if in the workplace at least once a week) or within 7 days before entering the workplace.
  • The ETS does not require employers to pay for any costs associated with testing; however, there could be other labor laws, state requirements or contractual agreements that may require the employer to pay.

Employees may have to pay for testing, and as I read it, recovery time is not paid.

  • Employees who are not fully vaccinated must wear a face covering when indoors or when occupying a vehicle with another person for work purposes.
  • Employees must be required to provide prompt notice when they test positive for COVID-19 or if they are diagnosed with COVID-19. Employees who have received a positive test or a COVID-19 diagnosis must immediately be removed from the workplace, regardless of their vaccination status and they must not be allowed to return until they meet certain return to work criteria.
  • Employers must provide employees with information about the requirements of the ETS, the company policy, information on vaccine efficacy, protections against retaliation and laws on knowingly supplying false information.
  • Employers must report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them and work-related COVID-19 in-patient hospitalizations within 24 hours of learning about the hospitalization.

(The vendor then lists a number of services they provide, like developing a testing strategy, that a national health service would already have provided, if we were a civilized country.)

So that is where we are. In the remainder of the post, I’ll look at the history of the ETS, the extremely entertaining text of BST Holdings vs. OSHA, and the weakness of the ETS as a pandemic prevention measure. I’ll conclude with a few remarks on the Biden Administration’s blundering.

History of the ETS

I tried to write a post on the ETS when the initial draft was sent to the White House on October 12, but I couldn’t find a copy of it anywhere; it was almost as if an embargo had been imposed. This Time Magazine article from late September may explain why. The White House dictated the bill, and OSHA was their stenographer:

The tension between the agency and the White House traces back to Biden’s second day in office, when he directed OSHA to create a comprehensive ETS that could prevent worker exposure to COVID-19. A team including health and safety specialists, industrial hygienists, engineers and attorneys collaborated to write a rule for all workplaces. The result was a 780-page unpublished ETS that included widespread mandates for masks, six feet of separation, proper ventilation, cleaning and disinfection, quarantining sick workers, and a notification system that would have told workers if they were exposed to the virus, according to the draft text of the rule. (It did not include vaccination requirements, as OSHA wrote the draft before vaccines were widely available.) The unpublished ETS is available due to a Freedom of Information Act request.

But the ETS that the President had personally requested “never saw the light of day,” says Debbie Berkowitz, a former OSHA official and National Employment Law Project (NELP) safety program director. “I think the Administration didn’t have the political will to get it done.” One problem, experts say, is that the ETS was overtaken by vaccine availability, evolving Centers for Disease Control and Prevention (CDC) guidelines, and animosity toward federal mandates.

In other words, the unpublished draft would have imposed the “Swiss Cheese Model” of layered protection on the workplace. Instead, as if straight out of the West Wing:

But the scope of the rule was drafted in the White House without significant input from agency experts, former OSHA officials say. “OSHA staff and leaders and DOL staff and leaders would prefer a more comprehensive standard,” [Former Deputy Assistant Secretary of Labor for OSHA Jordan Barab] says. “I think there is a lot of frustration that this is limited exclusively to just vaccinations or testing. The mitigation measures are totally absent.”

Note that this makes the current ETS White House Chief of Staff and former Ebola[2] Czar Ron Klain’s baby. Klain would also have been responsible for the weird eligibility determination for covered businesses:

That this ETS applies only to businesses with 100 or more employees also marked a departure from the agency’s standards. Limiting the vaccination and testing rule to larger businesses has no precedence in past guidelines, says David Michaels, OSHA’s administrator from 2009 to 2017. “When it comes to protecting workers from serious hazards, OSHA doesn’t distinguish between workplaces of different sizes,” he says.

As we are about to see, some of the legal issues discerned — if that is the word I want — by the Fifth Circuit come from this series of White House decisions.

BST Holdings vs. OSHA

I do not have a view on the merits of the Fifth Circuit’s stay, but it is well-written (“blistering“). Rather, I will pluck four extracts from the text that either bear on the Biden Administration’s decision making in developing the rule, that speak to our understanding of the pandemic, or that bear on our current crisis in governance.

1) The rule is sloppily drafted

Thus, as § 655(c)(1) plainly provides, to be lawfully enacted, an ETS must: (1) address “substances or agents determined to be toxic or physically harmful”—or “new hazards”—in the workplace. In its brief, Texas makes a compelling argument that § 655(c)(1)’s neighboring phrases “substances or agents” and “toxic or physically harmful” place an airborne virus beyond the purview of an OSHA ETS in the first place. To avoid “giving unintended breadth to the Acts of Congress,” courts “rely on the principle of noscitur a sociis—a word is known by the company it keeps.” Yates v. United States, 574 U.S. 528, 543 (2015) (cleaned up[3]). Here, OSHA’s attempt to shoehorn an airborne virus that is both widely present in society (and thus not particular to any workplace) and non-life-threatening to a vast majority of employees into a neighboring phrase connoting toxicity and poisonousness is yet another transparent stretch.

First, I’m delighted to find SARS-CoV-2 characterized as “an airborne virus” in a judicial ruling; it seems the only people who aren’t clear on this point are CDC, WHO, and the West Wing[4]. Second, Texas’s argument that “agent” doesn’t necessarily subsume “infectious agent” seems plausible to this layperson; and it seems like the sort of thing the ETS drafters should have worked out in advance.

2) There’s no emergency.

The Administration’s prior statements in this regard further belie the notion that COVID-19 poses the kind of emergency that allows OSHA to take the extreme measure of an ETS. In reviewing agency pronouncements, courts need not turn a blind eye to the statements of those issuing such pronouncements. See, e.g., FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). In fact, courts have an affirmative duty not to do so. It is thus critical to note that the Mandate makes no serious attempt to explain why OSHA and the President himself17 were against vaccine mandates before they were for one here. See, e.g., Occupational Exposure to Bloodborne Pathogens, 54 Fed. Reg. 23,042, 23,045 (May 30, 1989) (“Health in general is an intensely personal matter. . . . OSHA prefers to encourage rather than try to force by governmental coercion, employee cooperation in [a] vaccination program.”); Letter from Loren Sweatt, Principal Deputy Assistant Sec’y, OSHA, to Richard L. Trumka, President, AFL-CIO at 3 (May 29, 2020) [hereinafter Sweatt Letter] (acknowledging as a general matter that it “would not be necessary for OSHA to issue an ETS to protect workers from infectious diseases” because “OSHA lacks evidence to conclude that all infectious diseases to which employees may be exposed at a workplace constitute a ‘grave danger’ for which an ETS is an appropriate remedy”). Because it is generally “arbitrary or capricious” to “depart from a prior policy sub silentio,” agencies must typically provide a “detailed explanation” for contradicting a prior policy, particularly when the “prior policy has engendered serious reliance interests.” FCC v. Fox, 556 U.S. at 515. OSHA’s reversal here strains credulity, as does its pretextual basis. Such shortcomings are all hallmarks of unlawful agency actions.

The ETS had an exceptionally long — indeed, a nine-month’s long — gestation period; from January to October 2021. It’s hard to argue for an emergency in such a case. (I would think the real emergency was Covid’s resurgence after the Biden administration told everybody they could take their masks off and Covid promptly surged, but that doesn’t seem to be an argument anyone has made.)

3) The rule is overinclusive[5].

We begin by stating the obvious. The Occupational Safety and Health Act, which created OSHA, was enacted by Congress to assure Americans “safe and healthful working conditions and to preserve our human resources.” See 29 U.S.C. § 651 (statement of findings and declaration of purpose and policy). It was not—and likely could not be, under the Commerce Clause and nondelegation doctrine8—intended to authorize a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways. Cf. Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2488–90 (2021) (per curiam).

8 The nondelegation doctrine constrains Congress’s ability to delegate its legislative authority to executive agencies. See, e.g., Mistretta v. United States, 488 U.S. 361, 371–72 (1989) (“The Constitution provides that ‘[a]ll legislative Powers herein granted shall be vested in a Congress of the United States’ . . . and we have long insisted that ‘the integrity and maintenance of the system of government ordered by the Constitution’ mandate that Congress generally cannot delegate its legislative power to another Branch.”

The non-delegation doctrine assumes a Congress that can legislate and a government that can govern. That’s not where we are. Hence, end-runs like the ETS (and it is an end-run, as Klain’s remarks will show).

4) The rule is underinclusive.

[The ETS purports] to save employees with 99 or more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat).

The Fifth Circuit is quite right; this is absurd (and doesn’t sound a lot like “equal protection,” if such a thing applies anymore). And the absurdity is 100% down to the White House and Ron Klain; OSHA (see David Michaels above) says this limitation in the ETS is without precedent. But liberal Democrats just can’t quit their complex eligibility requirements!

Weakness of the ETS

When we looked at the history of the ETS, we saw that the Biden administration rejected the “Swiss Cheese Model” in favor of vax + masks (not that there’s anything wrong with masks). Hence, they rejected imposing requirements on ventilation. Let me underline this by quoting the ETS FAQ:

Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-2), the virus that causes COVID-19, is highly infectious and can spread from person to person, including through aerosol transmission of particles produced when an infected person exhales, talks, vocalizes, sneezes, or cough. The virus that causes COVID-19 is highly transmissible and can be spread by people who have no symptoms. Particles containing the virus can travel more than 6 feet, especially indoors and in dry conditions (relative humidity below 40%), and can be spread by individuals who do not know they are infected.

Again, everybody knows how aerosol transmission works but CDC, WHO, and the West Wing. More; I have underlined the words that show were we do not have requirements:

OSHA also continues to recommend implementing multiple layers of controls (e.g. mask wearing, distancing, and increased ventilation). … Additional fundamental controls that protect unvaccinated and other at-risk workers include maintaining ventilation systems, implementing physical distancing, and properly using face coverings (or other Personal Protective Equipment (PPE) and respiratory protection such as N95 respirators when appropriate), and proper cleaning…. OSHA provides employers with specific guidance for environments at a higher risk for exposure to or spread of COVID-19, primarily workplaces where unvaccinated or otherwise at-risk workers are more likely to be in prolonged, close contact with other workers or the public, or in closed spaces without adequate ventilation.

Again, through the ETS the West Wing rejects the layered approach recommended by OSHA, and rejects requiring ventilation standards[6].

An additional weakness is masks, which OSHA calls “face coverings”:

A “face covering” means a covering that: (1) completely covers the nose and mouth; (2) is made with two or more layers of a breathable fabric that is tightly woven (i.e., fabrics that do not let light pass through when held up to a light source); (3) is secured to the head with ties, ear loops, or elastic bands that go behind the head. If gaiters are worn, they should have two layers of fabric or be folded to make two layers; (4) fits snugly over the nose, mouth, and chin with no large gaps on the outside of the face; and (5) is a solid piece of material without slits, exhalation valves, visible holes, punctures, or other openings. This definition of face covering allows various different types of masks including clear face coverings or cloth face coverings with a clear plastic panel that, despite the non-cloth material allowing light to pass through, otherwise meet this definition and which may be used to facilitate communication with people who are hearing impaired or others who need to see a speaker’s mouth or facial expressions to understand speech or sign language, respectively. Face coverings can be manufactured or homemade, and they can incorporate a variety of designs, structures, and materials. Face coverings provide variable levels of protection based on their design and construction.

They allow gaiters. My gawd. This is, to say the least, a missed opportunity to make a market in (K)N95s. I know many of us were making home-made masks in 2020, and a good thing, too. But this — hear me out — is 2021. OSHA should at least have some technical standards, here, instead of the insanely mushy “Face coverings provide variable levels of protection based on their design and construction.”


The West Wing seems to be fixated — we might call this their idée vax — on vaccination (plus masking). If we only look at their behavior, they reject aerosol transmission altogether; Biden implicitly endorsed plexiglass “protection” (droplet theory-driven hygiene theatre) in May 2021 (!!); Dr. Biden pointedly mentioned only vax in her article on “What to do if you want to protect your kids” in November 2021 (!!!) (this at a time when parents are busily building Corsi boxes, smuggling CO2 meters into classrooms, and getting reluctant administrators to open windows and prop open doors).

Their idée vax carried through into the drafting of the ETS. From Jonathan Turley:

Biden eventually acknowledged that he does not have the authority to order a national mandate directly. That is when Klain again confidently rushed in where wiser government lawyers fear to tread. He announced that the White House had found a way to evade the constitutional limitations: “OSHA doing this vaxx mandate as an emergency workplace safety rule is the ultimate work-around for the Federal govt to require vaccinations.”

The problem is that OSHA itself failed to see that “common sense” meaning until the White House pushed the work-around. After President Biden announced that OSHA would make the declaration, the agency appears to have reverse-engineered its interpretation to fit the order. For years, OSHA debated whether it can or should issue an “Infectious Diseases Regulatory Framework” covering “airborne infectious diseases.” It has never issued such a framework and, in the past, has done no more than requiring employers to offer workers such things as Hepatitis B vaccination.

(The Fifth Circuit took notice of Klain’s “work-around” verbiage in Footnote 13.)

In one of its rhetorical flights, the Fifth Circuit writes:

The Mandate is staggeringly overbroad. Applying to 2 out of 3 private-sector employees in America, in workplaces as diverse as the country itself, the Mandate fails to consider what is perhaps the most salient fact of all: the ongoing threat of COVID-19 is more dangerous to some employees than to other employees. All else equal, a 28 year-old trucker spending the bulk of his workday in the solitude of his cab is simply less vulnerable to COVID-19 than a 62 year-old prison janitor. Likewise, a naturally immune unvaccinated worker is presumably at less risk than an unvaccinated worker who has never had the virus. The list goes on, but one constant remains—the Mandate fails almost completely to address, or even respond to, much of this reality and common sense.

This is not entirely fair; the ETS does not require masks for isolated individuals, like truck drivers. Nevertheless, vax + masks most certainly does not take the diversity of the American workplace into account. The savage irony here is that the Swiss Cheese Model rejected by the Biden Administration does exactly that; to implement ventilation requirements, for example, one must understand the ventilation patterns of a particular workplace in a particular industry. That’s about as “diverse” as it gets. Different layers for different players, one might say. Biden wants OSHA to do what it can’t (vax), and doesn’t want OSHA to do what it should (ventilation).

We’d better hope we dodge a bullet on the next variant, because with ideé vax we’ve not only not failed to establish a regulatory regimen for the non-pharmaceutical interventions we’ll need to hold the line until pharmaceuticals (we hope) bring relief, we’ve allowed them to be actively discredited (masks and social distancing vs. “freedom”) or ignored and erased the science that supports them (aerosol transmission). Such is the case with the sadly inadequate ETS. Joe, Ron, Rachel, Tony: Good job.


[1] Why the hell is it that the press never cites to cases? It’s abominable practice.

[2] See here for the unwillingness of the public health establishment to consider that Ebola might be airborne, a history surely known by Klain, if he is competent.

[3] Somebody went “Ouch!” when they read that, but I I don’t know who or why.

[4] And some powerful gatekeepers in the hospital “infection control” community.

[5] The stay uses the “overinclusive”/”underinclusive” trope in a somewhat different structure, but these are the texts I wish to extract.

[6] I believe that OSHA has always been weak on ventilation:

Time also included this nugget on the reaction of OSHA worker bees to the West Wing’s reaction to their initial draft:

“It was very frustrating for everyone at OSHA, from the acting administrator all the way down to the staff working every single weekend for months on the standard,” Barab says.

It would be even more frustrating if the draft shows they screwed up their courage to do the right thing on ventilation under a presumably liberal President, only to be slapped down.

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About Lambert Strether

Readers, I have had a correspondent characterize my views as realistic cynical. Let me briefly explain them. I believe in universal programs that provide concrete material benefits, especially to the working class. Medicare for All is the prime example, but tuition-free college and a Post Office Bank also fall under this heading. So do a Jobs Guarantee and a Debt Jubilee. Clearly, neither liberal Democrats nor conservative Republicans can deliver on such programs, because the two are different flavors of neoliberalism (“Because markets”). I don’t much care about the “ism” that delivers the benefits, although whichever one does have to put common humanity first, as opposed to markets. Could be a second FDR saving capitalism, democratic socialism leashing and collaring it, or communism razing it. I don’t much care, as long as the benefits are delivered. To me, the key issue — and this is why Medicare for All is always first with me — is the tens of thousands of excess “deaths from despair,” as described by the Case-Deaton study, and other recent studies. That enormous body count makes Medicare for All, at the very least, a moral and strategic imperative. And that level of suffering and organic damage makes the concerns of identity politics — even the worthy fight to help the refugees Bush, Obama, and Clinton’s wars created — bright shiny objects by comparison. Hence my frustration with the news flow — currently in my view the swirling intersection of two, separate Shock Doctrine campaigns, one by the Administration, and the other by out-of-power liberals and their allies in the State and in the press — a news flow that constantly forces me to focus on matters that I regard as of secondary importance to the excess deaths. What kind of political economy is it that halts or even reverses the increases in life expectancy that civilized societies have achieved? I am also very hopeful that the continuing destruction of both party establishments will open the space for voices supporting programs similar to those I have listed; let’s call such voices “the left.” Volatility creates opportunity, especially if the Democrat establishment, which puts markets first and opposes all such programs, isn’t allowed to get back into the saddle. Eyes on the prize! I love the tactical level, and secretly love even the horse race, since I’ve been blogging about it daily for fourteen years, but everything I write has this perspective at the back of it.


  1. zagonostra

    Thanks for this post, much to mull over. The company I work for (preCV19) has about 22K in the U.S. As of right now the bulletin that went out to all employees several weeks still stands. Even for employees like myself who work remotely, they are required to show proof of vaccination or fill out exemption documents and submit to HR by the 1’st of Dec.

    I’m curious what the legal status is for those employees who refuse to respond to the company’s communication and just ignore it.

    [Bob Dylan – You ain’t goin nowhere]

    I don’t care how many letters they sent
    The morning came, the morning went
    Pack up your money, pick up your tent
    You ain’t goin’ nowhere

    1. Edward Jones

      I have managed factories for 45 years. If you refuse to wear your N95 masks as required or if you refuse to wear your safety glasses I discipline you. If you repeat the offense I fire you. I have fired numerous people for refusing to follow safety rules that I draw from the OSHA standard. No big deal. We always ask immigrant employees for vaccination records that they always have. We assume Americans are vaccinated since it is required to attend schools. I have sent immigrants to get vaccinations. 40% of the people that have worked for me are immigrants. In industrial work places this new rule is no big deal.

  2. Cocomaan

    2) There’s no emergency.

    This was a great piece and I thought this section was particularly interesting.

    The administration’s announcement in early September seemed to be linked to the summer surge in the southeast and TX. But the administration had been doing victory laps all summer long (including removing mask mandates, the ultimate Mission Accomplished move), which makes their emergency grounding really suspect.

    I do some work in animal lab monitoring and one of the jokes is that the animals have better air than most office workers on campus: a cage of lab mice get an air change every minute or so; an office worker never gets any air change in most offices.

    Well done on analyzing all the things that i did not have the patience to read!

  3. marku52

    Classic Democrat party BS. Let’s do everything EXCEPT something that might work.

    Thanks for the excellent article.

    1. redleg

      And, AND means test it, in this case by number of employees. It would be funny if it wasn’t potentially life threatening.

  4. Carolinian

    Question number one: why is any of this Biden’s business in the first place? To be sure he’s in charge of OSHA but then Klain has said OSHA was just a workaround. Is Biden going to start dictating school board policy and other items that are traditionally local (oh wait).

    Of course there’s always the “e” word–emergency. But as the court says they talk emergency but don’t act like emergency. The public’s BS detector is justified in being on high alert.

  5. drumlin woodchuckles

    Speaking of personal behavior’s contribution to the general multi-personal layered defense . . . I would suppose that for those who have to travel by transit from somewhere to somewhere, some transit venues are more covid-dangerous than others.

    Does anyone here have any speculative thoughts as to whether catching covid is more likely in Union Station, Chicago with all the hundreds to a thousand-or-so passengers milling around at gates waiting for the train . . . or is catching covid more likely in a Greyhound Station for reasons I have not thought of?

    Any thoughts on which mode of travel is more covid hazardous and which one is less covid hazardous?

    1. megrim

      My big criteria would probably be “can I wait outdoors?” I would be ok waiting at the bus station in Providence RI, because I can wait outside, but not at South Station in Boston (where IIRC the buses are in some basementy place). Similarly, I would be more comfortable waiting for the train in New London, CT where I can sit outdoors than in Hartford, CT where that is harder to manage.

      1. Expat2uruguay

        I think another important question is can the windows be opened on the transit vehicle? I ride buses here in Uruguay all the time and I make sure to open any Windows around me. You don’t have to open them all the way, just a couple inches is sufficient.

    2. whiteylockmandoubled

      Infection risk = concentration x time
      Concentration = [number of infected people x average viral load x average breathing rate x time of infected people in location]/[volume x ventilation rate]

      These aren’t real equations, of course, but they show the factors to consider. There are a lot of factors that go into the effectiveness of ventilation systems. Most things that we assume help generally do, except when they don’t. Opening windows, for example, is generally valuable and a good thing to do especially on moving transit vehicles, but in certain circumstances due to imbalance in exterior and interior air pressure or the structure of particular ventilation systems, may actually increase the risk in at least parts of a confined indoor space.

      So much of what generates risk is unknown or difficult for ordinary people to know.. Getting real information on the performance of ventilation systems in particular public accommodations isn’t easy. If you look really hard, you can find the specs for public buildings and possibly even recent inspections, and, if you’re so inclined, check them against current ASHRAE standards (which have their own historic neoliberal deregulatory issues). But few people have the time to do those things and knowing whether the building in question meets its own specs in practice is almost impossible – particularly whether the rate of room air changes is augmented by highly rated filtration systems. The best thing we can do is avoid protracted periods of time in crowded, poorly ventilated indoor spaces. Definitely wait outside til just before your train or bus leaves. Open windows where you can, especially if you think the existing HVAC systems aren’t working, but try to make sure that there’s cross ventilation.

      All things being equal, it’s probably safer to be on an airplane than a bus or a train unless the windows open wide on either side of the bus/train and the weather is good enough to keep them all open, since the ventilation on airplanes is supposed to turn over the air very rapidly. Emphasis on supposed to and all things being equal, since airplanes tend to really pack passengers in, and there’s usually not a “wait outside until just before your flight leaves” option at an airport.

  6. Samuel Conner

    Perhaps this is one of those intractable optimization problems in which the best solution can only be found by random search through all alternatives.

  7. ven

    I would have thought that the key points here:
    1. The vaccine does not reduce transmission, and the vaccinated could be super-spreaders (because their symptoms are suppressed).
    2. There is a personal risk-benefit calculation to be made about vaccine efficacy in preventing mortality vs adverse effects, both short-term and long-term (yet to play out).
    3. A potential that vaccination causes selection of vaccine-resistant mutations.
    4. A potential that vaccination could lead to ADE in recipients

    In this context of how little we know about the vaccines, consideration of vaccine mandates is wholly illogical and unscientific, not just ‘blundering’.

    1. drumlin woodchuckles

      Perhaps we should stop calling them “vaccines”. Perhaps we should start calling them mRNA para-vaccinoids as per truth in labelling.

      1. Hank George

        The only reason they’re called vaccines is that they changed the definition of the term to accommodate this. If you look at the 2019 definition of a vaccine, these COVID-19 gene modifiers would not qualify.

        Indeed, if science mattered one iota to the FDA, CDC, WHO and NIH, we would see all evidence regarding this pandemic virus openly discussed in a legitimate manner…something forbidden by Fauci et al for reasons that keep one up at night!

  8. Onihikage

    I always appreciate NC’s ability to point out things that we know work that aren’t being done. Did we ever get COVID-sniffing dogs, in the end?

    Typos and corrections:

    on November 26, the Fifth Circuit affirmed the stay

    This should be November 12 according to the document in the link provided. Alternatively, I suppose the grammar could be edited to future-tense, but that might be a tough pill for NC’s readers to swallow.

    There are three instances of ETS being typo’d as EST.

    An additional weakness is masks, which OSAH calls “face coverings”:

    OSAH -> OSHA

  9. jim truti

    I see that africa has a 7% vaccination rate average and cases arent exploding as in europe, I wonder why is this?

        1. Grumpy Engineer

          Yes. That’s a big factor. Another is that Africans spend more time outdoors and get more sunlight. This means a lower percentage of the population is Vitamin D deficient.

    1. saywhat?

      Because Africans typically be skinny; ie. have less co-morbidities?

      Btw, been watching “The 80 Years War” by HistoryDefragmented (Love it!). What’s interesting to me is how many generals suffered from gout, often called the “rich man’s disease.”

  10. flora

    Maybe using OSHA as a clever “work around” of the Constitutional prohibition on the admin issuing the mandate directly is too clever by half?

    Thanks for this post.

    1. Objective Ace

      I’m not convinced Biden wants the mandate to go through. If it doesnt he then has a defense as Covid continues to spread. He can tell the PMC he took the issue serisly and did everything he could.. If only he hadn’t been ruled down by the courts the pandemic would have been behind us

      1. Anthony Stegman

        Exactly!! Straight out of Obama’s playbook; especially when he had two years with Democrat control of Congress.

  11. dao

    The purpose of the OSHA rule isn’t to protect workers, it is to coerce the unvaccinated to get vaccinated. That’s the sole purpose.

    I read much of the rule myself and it reads like it is written by an amateur.

    We have to “trust the science”, but only the science that is officially sanctioned. Thus, those with previous COVID must still get the jab, because the official science says there’s no evidence they are protected.

    The unvaccinated are the only ones required to wear masks because it’s a tactic to prod them to get vaccinated so they don’t have to wear masks. It has nothing to do with protecting anyone. The weekly tests are another cattle prod because they are an inconvenience and a financial expense.

    Finally, what a lot of people don’t realize is it is up to companies whether they want to allow the testing option at all. Since it is an administrative burden, it is likely to nudge companies to not even allow that option.

    1. Wombat

      What a world we live in. The previous administration passes the innocuous SALT cap to stick it to the laptop liberals.

      But now the people in charge impoverish incompliant families, destroy incompliant businesses, and fire rebellious healthcare workers – a war on the working class who won’t heed their betters.

  12. Zephyrum

    Since vaccinated people can still be covid carriers, where is the logic in not testing the vaccinated along with the unvaccinated? The logic seems to be that testing is a punishment designed to promote vaccination, but also to support the narrative/fantasy that the vaccines are sterilizing and/or materially reduce transmission. With the delta variant any reduction seems insufficient to warrant relaxing the other health measures. But these are Democrats, so punishment and narrative are the goal.

    1. drumlin woodchuckles

      Also, if the designers of this policy are secret Jackpot design engineers, then an additional and secret goal would be to keep spreading the disease accidentally-on-purpose.

      1. Zephyrum

        “Never ascribe to malice that which is adequately explained by defending the narrative for tribal politics.”
        With apologies to Hanlon.

        1. Noone from Nowheresville.

          Nah, sooner or later we have to stop giving them a pass. They’ve built their systems on purpose so they can escape taking accountability aka labels like incompetence or hypocrites, especially when it comes to tribal politics.

        2. Questa Nota

          The engineers have a lot of help in that narrative defense by media and others who have to work really hard not to notice what is right in front of their noses.

  13. VietnamVet

    The OSHA rule is a prime example of government planning when the only goal is to enrich the connected; in this case, the pharmaceutical industry.

    In March 2020 a full-blown public health response to coronavirus like China’s was impossible in the USA; there was neither the staff nor the will to do it. The Biden Administration which continues Trump’s Plan A (a mRNA “vaccine” only response) is so divorced from reality that they couldn’t recognize that companies with a 100 or more employees are second only to multi-nationals with power in America and have close connections to the judiciary at work and in the country clubs. It never had a chance of being implemented. The federal employee vaccine mandate is so pointless and draconian that it may turn Marines against their officers.

    This winter is crucial. If another lockdown is needed to prevent the total collapse of privatized healthcare; there are only two outcomes, a sudden collapse like the Soviet Union, or a declaration of a national emergency and copy what the Chinese are doing and rebuild the US public health system.

    The eradication of coronavirus in the USA is only possible if a working democratic republic is restored and a united people work together to end the pandemic.

    1. Brian Beijer

      My bet is that none of these things will happen, because of Lambert’s two rules of neo-liberalism. Not that I believe that cases won’t rise. I would be shocked if they didn’t. I don’t believe there will be more lock downs, nor a national emergency, nor do I think the system will collapse. I think the government will do what it always does when in the wrong. They’ll double-down on their position. They’ll continue to blame the unvaccinated, even if they eventually consist of only 1%. They’ll use the unvaccinated as a scape goat for the public to vent their frustration, terror and pent-up rage. They will do as in other countries and continue restrictions and punative measures on the unvaccinated. Maybe even denying them access to healthcare (like other countries), thereby preventing the system from collapsing. The majority of the public will follow along, as they always do. When 100% of the population is vaccinated, then Pfizer will tweak their vaccine and call it “new and improved” like companies always do. The majority of the public will follow along as they always do. The wheel goes ’round and ’round…

      1. DR

        Nah when 100% are vaxxed they’ll just reclassify unboostered as the new unvaxxed and/or start blaming a new variant (which will emerge anyway because of the leaky non sterilising vaccines). The blame train and othering will continue unabated!

        1. Questa Nota

          Those campaign contributions ain’t gonna fund themselves. Need more boosters to keep down the wiseguys.

  14. Edward H Jones

    The court is totally wrong. OSHA works exactly as the law requires and this standard does as well. This law does not affect all of society. Just people who work in businesses with 100 people. OSHA has many health requirements for these workers. I have 45 years managing factories. We wear safety glasses when certain type of equipment is in use. It is a requirement. We use N95 masks for many jobs. It is a requirement. Most of the N95 masks used in the US are in industry not hospitals. I can and have fired people who refuse to follow the rules. This vaccine requirement is no different. We always require a pre employment physical and gather data on other vaccines prior to hiring people. Nothing new here. What is unique here is that OSHA rolled this out quickly. OSHA standards are generally reviewed in detail by industry prior to release. In this case time is of the essence. I know of no one in industry in Connecticut who is griping about this standard. Everyone is relieved because it gives owners support to keep their workplaces safe and keep everyone on the job. As an aside I can tell you that in 45 years of seeing workplace injuries I have come to view OSHA regulations and their local people as a huge help in controlling cost in factories. It is far cheaper to audit your plant monthly to the OSHA requirements than to have someone get injured.

    1. Lambert Strether Post author

      Do consider reading the post. You seem to think I took a view of the merits of the stay; I explicitly said I do not. Your argument that since the ETS is limited to businesses of 99 employees it does not affect the whole of society strikes me as tediously literal-minded. Surely it’s obvious that OSHA isn’t in the vaccination business, which is why even Klain considered the ETS an “end run”? Especially when we have actual agencies who are in that business? You also seem to think that you need to defend OSHA against the post. You do not. I think it was wrong for Biden to make OSHA into his stenographer, and I think that OSHA’s original 768-page plan was the ETS to adopt. That would have covered not only masking, which you rightly support, but ventilation (which you do not mention, and which I certainly hope you are taking care of).

  15. Susan the other

    Makes me wonder if Congress and the Administration realize how unbearably pointless they are. People relying on simple common sense would be better than relying on this moronic government. Masks are the most important defense. (Could anything be more obvious?) And they are most effective preventing the carrier from infecting others nearby. So the obvious reaction to an unmasked person should be that they are anti social and don’t care whom they infect. Because, by now, just about every single person has been exposed to Covid and is thus a carrier, even if an insignificant one. Biden’s ETS attempt would be laughable if it weren’t so humiliating – we allow this and all the other crap to be called “government”. We should make the face mask our national symbol – as if to say the obvious: prevent the rot at its source. That would be a good code to live by.

    1. skippy

      Yeah but face masks cover up your individual identity and in a culture that worships it … first line item in all advertising …

  16. Jasbo

    I now am witnessing friends potentially losing their livelihoods over this, unsure of what to do.

    Regardless of the outcome on the ETS lawsuits, they will not forget this.

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