We seem to be going down the path leading to everything not forbidden is compulsory. The Biden administration is writing one version of the totalitarian rule into administrative law with the OSHA “emergency temporary standard” requiring employers with 100 or more employees to “develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.” It’s a long, long way to temporary.

OSHA’s interim final rule and request for comments is posted here. It has also posted a summary here. OSHA states that it is “strongly encouraging vaccination.” I would put the emphasis on “strongly.” Translation is required for “encouraging.” We know what is meant by “vaccination.”

The rule is a new chapter in the Adventures in Administrative Law that I sought to trace during the Obama administration. We will follow the legal argument that this new chapter of the saga entails. For background see my NR review of Philip Hamburger’s great Is Administrative Law Unlawful? Reason’s Jacob Sullum gets the ball rolling on the the OSHA ETS here.

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