Sidney Shapiro, Professor of Law and Frank U. Fletcher Chair in Administrative Law
Posted: October 26th, 2021 | By: Amelia Nitz Kennedy
As employers across the country anticipate a rule being developed by the Occupational Safety and Health Administration that would require vaccination or weekly testing for people working for companies with 100 or more employees, Wake Forest Law Professor Sidney Shapiro, a leading expert in administrative procedure and regulatory policy, testified before members of the U.S. House Education and Labor Committee about OSHA’s legal authority to establish and enforce vaccine standards and accommodations.
In the Oct. 26 joint hearing of the Workplace Protections and Civil Rights and Human Services Subcommittees, Shapiro explained that OSHA has clear legal authority under the Occupational Safety and Health Act to issue an emergency temporary standard (ETS) requiring COVID-19 vaccines and testing because these protections save lives more so than masking and social distancing.
“We know for certain that workers will die from exposure to COVID unless they are protected by an ETS during the time it will take OSHA to write a permanent standard,” Shapiro said in his written testimony. “Short-term exposure to COVID, especially the Delta variant, is a grave danger that requires immediate protection because that single short-term exposure is sufficient to cause the worker’s death or serious illness.”
OSHA’s anticipated rule requiring vaccines and testing is especially appropriate in response to the Delta variant and a slowdown in the pace of vaccinations, Shapiro argued, and is in line with the kinds of “sensible safeguards” the U.S. has taken to protect people since its founding.
“The existing ETS, which does not require vaccinations or testing, was promulgated at a time in the country when it appeared possible that most Americans would become vaccinated and before the new outbreaks of COVID that appeared in the fall due to the Delta COVID variant,” Shapiro wrote. “OSHA must assess the need for an ETS by considering the evolving understanding of the best ways to protect workers in their places of employment.
“OSHA not only has the legal authority to issue an ETS requiring vaccines and testing, but its statutory mandate also requires it to take this step,” he continued. “People should not have to risk their lives when they go to work when there are sensible safeguards that would protect them. An ETC requiring vaccinations or testing would fulfill this life-saving mandate.”
In addition to Shapiro, the subcommittees also heard testimony from Dr. Doron Dorfman, associate professor of law at Syracuse University College of Law; Scott Hecker, senior counsel in the Workplace Safety and Environmental Practice Group of Seyfarth Shaw LLP’s Washington, D.C. office; and Richelle T. Luther, senior vice president of corporate affairs and chief human resources officer of Columbia Sportswear Company.
Read Professor Shapiro’s full written testimony. Watch a recording of the full hearing, “Protecting Lives and Livelihoods: Vaccine Requirements and Employee Accommodations.”
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