Iowa Refuses to Adopt OSHA’s Vaccination and Testing ETS

Iowa Employers not subject to the new federal mandate.

On Friday, January 7, 2022, the U.S. Supreme Court heard oral arguments related to federal OSHA’s Vaccination and Testing Emergency Temporary Standard (“ETS”).  As of the time this article was published, the Court had not rendered its decision.  But if the Court refuses to stay enforcement of the ETS and allows it to go into effect, then neither public nor private sector employers in Iowa will be obligated to comply with the new mandate.

Most people (including lawyers) are unaware that Section 18 of the federal Occupational Safety and Health Act (“OSH Act”) allows a state to assume responsibility for development and enforcement of occupational safety and health standards within its borders.  A state that does so enacts a “state plan” that must receive approval from federal OSHA.  According to the OSH Act, state plans must be at least as effective as OSHA in protecting workers and in preventing work-related injuries, illnesses and deaths.

There are currently 22 state plans covering both private sector and state and local government workers.  Iowa is one of those 22 states.  Arguably, for Iowa’s state plan to be “at least as effective” as the federal OSH Act and its regulations, Iowa needs to adopt new standards when federal OSHA issues them.  This typically occurs by Iowa’s Commissioner of Labor adopting a new federal OSHA standard according to the rules set forth in Iowa’s Administrative Procedure Act.  Historically (and without fanfare), Iowa has adopted many new federal OSHA standards word-for-word.  Well, not this time.

Iowa Labor Commissioner Rod Roberts stated that Iowa will neither be adopting nor enforcing federal OSHA’s Vaccination and Testing ETS.  Commissioner Roberts stated:

“As a state plan state, the Iowa Division of Labor is charged with protecting the health and safety of those in the workplace and has the authority to enforce workplace safety and health standards for Iowa businesses.  Iowa doesn’t have a standard requiring the Covid-19 vaccine or testing.  But after closely reviewing the federal OSHA Vaccine Mandate, Iowa has determined it will not adopt the federal standard.  Iowa has concluded that it is not necessary because Iowa’s existing standards are at least as effective as the federal standard change.”

Federal OSHA will no doubt disagree with Commissioner Roberts’ decision and may take necessary steps to decertify Iowa’s state plan.  If successful, federal OSHA would then assume jurisdiction over workplace safety and health in Iowa.

Decertification, however, is a lengthy process.  Indeed, the sun may set on the ETS prior to the completion of a decertification attempt due to: (i) a final standard not being promulgated within six months as contemplated by Section 6 of the OSH Act; or (ii) the pandemic ending.

And what if a dozen or so of the other 22 state plan states follow Iowa’s lead and refuse to adopt the ETS? Does federal OSHA have the funding and personnel to undertake safety and health enforcement in all of those states?  Probably not.

Then again, this whole issue may soon be moot if the U.S. Supreme Court stays enforcement of federal OSHA’s ETS.  Based upon the Justices’ questions during oral argument, a stay of the ETS appears to be more likely than not.  Nevertheless, this refusal by Iowa to adopt the ETS remains fascinating to watch.  It typifies the now centuries’ old power struggle between the states and our federal government.

Stay tuned!