Back on September 9, President Joe Biden announced a panoply of COVID vaccine mandates, citing that he was tired of waiting on the unvaccinated to do their part: “My message to unvaccinated Americans is this: What more is there to wait for? … We’ve been patient, but our patience is wearing thin.”
So it is with great irony that the Occupational Health and Safety Administration finally released its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) last week, a full 56 days after Biden’s announcement. Writing for The Dispatch on Sept. 24, I addressed the problem with the timing and legal delays in mandating COVID vaccination through an OSHA ETS: “Even if it survives all legal challenges, implementation of the employer mandate may be delayed until long after it’s needed.”
There are many valid legal arguments against a sweeping mandate, even when such a mandate allows employers and employees to opt instead for weekly COVID testing. These include whether the federal government has the authority to issue such a mandate, whether COVID in the workplace rises to the level of “grave danger” required to issue an ETS, and the validity of OSHA’s 100-employee cutoff to which the ETS applies.
But from a practical standpoint, a vaccine mandate was going to be effective only if it could be issued quickly enough to address the Delta surge.