Congress & OSHA gave us tools against mandates

COVID vaccines, PCR test swabs and masks all fail to rise to general and specific standards that the US Congress and OSHA have had in place for decades.

It’s the time of year when procrastinating entrepreneurs notice how little time is left for the annual update on OSHA guidelines for the staff.   Fitting into this category, I have recently reviewed the Occupational Safety and Health Act passed by the US Congress in 1970, in order to prepare for this annual meeting with my esteemed co-workers.  Although I’m technically the boss, they are inherently my equals as people, so please think of them as co-workers and colleagues.  I even go so far as to think of them as human beings with bodily autonomy.  But I digress from Biden Administration ambitions and the role of OSHA.

A half century ago when OSHA was established, manufacturing in the US had just begun to tarnish from its heyday, and the long 20th century economic expansion had only recently begun to give way to a reliance on foreign imported goods.  There were still plenty of farm equipment tragedies, coal mine deaths, both acute and chronic, and many gruesome factory assembly line catastrophes.  This was at a time when labor unions advocated for worker safety, and the nation maybe even listened.  The Bureau of Labor Standards (1922-1971) that preceded OSHA had achieved a minimum wage and maximum working hours, [1] but it was not until it was re-named as OSHA in 1971 did safety issues take precedence.[2]  At the time that OSHA was formed, union membership was lower than earlier in the 20th Century, but considerably higher than now.   An estimated 27.3% of US workers were labor union members in 1970, [3] but only 9.6% were labor union members in 2020. [4] [5]

Media and public attention to OSHA skyrocketed in recent months following the Biden Administration’s attempt to enforce a COVID vaccine mandate to workers of companies with greater than 100 employees, by means of an admitted “workaround” through OSHA.

After the White House Chief of Staff Ronald Klain retweeted the “work-around” strategy, Senator Ted Cruz of Texas called the re-tweet “foolish” and a signal that the “admin knows it’s likely illegal” to force businesses to mandate vaccines under penalty of large fines. [6]  Constitutional scholar Jonathan Turley noted that the “problem is that the thing being ‘worked around’ is the Constitution.”    I am not an attorney, but I think that may have become a bit of a sticking point, and indeed the mis-tweet made it into the ruling of the Fifth Circuit on the OSHA rule. [7]

Turley added, “Klain effectively became a witness for the challengers in labeling the order an evasion . . . [and left the courts] in the unenviable position of ratifying an order that the Administration admits is a mere work around to evade constitutional limits.” [8]

Let’s now look at the role of OSHA, how it would be involved in vaccine mandates, and why federal courts have now put a stay on Biden’s order.

The Occupational Safety and Health Administration (OSHA) is commanded by the US Congress:

“To assure safe and healthful working conditions for working men and women,” and in setting workplace standards for hazardous exposures to the level “which most adequately assures to the extent feasible . . . that no employee will suffer material impairment of health or functional capacity.”  (OSHA Act of 1970), 29 USC 651 § 2 (b) (7). [9] 

Hazardous exposures have been regulated by OSHA to not exceed a maximum exposure level.  I would contend that OSHA was never authorized by any law to mandate or to force a minimum level of a hazard to employees (and dutifully pointed out in a recent Substack article: https://colleenhuber.substack.com/p/what-is-in-a-vaccine)   For example, it’s alright with OSHA if you must breathe 9 parts per million (ppm) benzene in your workplace air, but if it’s 11 ppm, that is not okay, because the OSHA limit is 10 ppm.   The hazardous exposures referred to by OSHA in the preceding paragraph may refer to temperature extremes, radiation, physically untenable teetering from heights and other risks.   However, with regard to certain “mandate” questions, let’s focus on exposure to chemical hazards, beginning with OSHA definitions.

OSHA defines Hazardous substance as per 42 U.S.C. §9601 and 49 CFR §172.101 [10] and appendices;

“Health hazard means a chemical or a pathogen where acute or chronic health effects may occur in exposed employees. It also includes stress due to temperature extremes. The term health hazard includes chemicals that are classified in accordance with the Hazard Communication Standard, 29 CFR §1910.1200, [11] as posing one of the following hazardous effects: Acute toxicity (any route of exposure); skin corrosion or irritation; serious eye damage or eye irritation; respiratory or skin sensitization; germ cell mutagenicity; carcinogenicity; reproductive toxicity; specific target organ toxicity (single or repeated exposure); aspiration toxicity or simple asphyxiant. (See Appendix A [12] to § 1910.1200—Health Hazard Criteria (Mandatory) for the criteria for determining whether a chemical is classified as a health hazard.)

“Permissible exposure limit means the exposure, inhalation or dermal permissible exposure limit specified in 29 CFR Part 1910, Subparts G and Z.”  [13]

Let’s now examine what we know, that is what we have been told by Pfizer and Moderna, of chemical components of their vaccines.  Polyethylene glycol and cationic lipids are two ingredients that have been acknowledged to be adjuvants in their vaccines.  In the above-referenced Substack article on these adjuvants, I show the risk mitigation instructions on the Material Safety Data Sheet, the standard documentation in the chemical industry for exposure to each of those substances.

Is the risk from COVID vaccines only theoretical?  Perhaps a year ago that argument could have been made, but since then they have been deployed around the world, and the results are increasingly catastrophic.  Recent data from Germany confirm that the COVID vaccines are strongly correlated with increases in excess mortality, but not from COVID.  Here is an English translation of that study. [14]  Data is accumulating that the COVID vaccines are the deadliest vaccines in human history by a factor of 800. [15]  Countries that launched early mass vaccination campaigns are now finding extraordinary increases in deaths from all causes.  [16]  In the United States alone, COVID vaccine deaths are now more than 45 times the annual combined deaths reported in the last decade from all vaccines and all medicines.  [17]

At this writing the Biden Administration’s attempts to force OSHA to mandate vaccines, specifically COVID-19 vaccines, has been stayed by the Fifth Circuit Court of Appeals on November 6, 2021, due to lack of statutory authority on the part of OSHA, as well as the “grave statutory and Constitutional issues with the mandate” and delineated numerous legal obstacles to such a mandate, including regarding overreach under the Commerce Clause and violation of separation of powers principles. 

Furthermore, “the liberty interests of individuals reluctant to get a COVID-19 vaccination are substantially burdened because they have to choose between their jobs and getting vaccinated.”  [18] 

The Court found that OSHA has no power to issue an “Emergency Temporary Standard” (ETS) to address an airborne virus that is both widely present in society (not limited to particular workplaces) and non-life-threatening to most employees.

The above problems with the attempted mandate by Biden are enough to have numerous commentators considering that the dead mandate will be impossible to resurrect, due to these criteria alone.

Not to be deterred, the Biden Administration then exercised its right of free speech to encourage employers to require their workers to be vaccinated.  However, even if companies are not mandated, and voluntarily choose to require vaccines of their workers, there are still major civil liberties issues, safety issues and specific OSHA-related violations as follows:

If an employer requires their employees to be vaccinated as a condition of employment, then any adverse reaction to the vaccine is logically work-related.  In the opinion of some employers, such an adverse reaction would then logically be recordable, if it is a new case under 29 CFR §1904.6 and meets any of the general recording criteria in 29 CFR § 1904.7. [19]

Then OSHA disavowed the above OSHA rules, saying that it will not “require” employers to record worker side effects from COVID-19 vaccination.  However, the lack of requirement is not at all the same as an injunction against such reporting, and conscientious employers still observe and take precautions against and remove work-related hazards.   (Again, I am not an attorney, so what do I know?  But does it take an attorney to argue before a court of law that an apple is not the same as an orange?)   Furthermore, OSHA’s statement of not requiring employers to report and record worker side-effects from COVID-19 vaccination is an implicit acknowledgement that an employer mandate comprises or involves (or could comprise or involve) a work-related hazard.  And doesn’t such a problem fall within the scope and purview and the original intent of the OSHA Act?

However, the recording of adverse events from COVID vaccination is now likely moot, because OSHA itself at this writing has suspended enforcement of the Biden Administration’s attempted COVID-19 vaccine mandate.  [20] [21]

Therefore, due to the above-summarized hazards, as an employer, I can confidently say that there will never be a mandate for the COVID vaccine or any other vaccine or medical procedure at my place of business.  But this is not primarily due to risk; it is primarily due to the bodily autonomy and personal sovereignty of each of my co-workers. 

Let’s now examine other tools of population control that have been euphemized as “pandemic mitigation efforts.”

Masks

OSHA defines Oxygen deficiency to mean that the concentration of oxygen by volume below which atmosphere supplying respiratory protection must be provided. It exists in atmospheres where the percentage of oxygen by volume is less than 19.5 percent oxygen. [22] 

The oxygen in masked airspace drops to beneath the threshold required by OSHA within the first 30 seconds of use. [23]

Carbon dioxide levels in masked airspace exceed OSHA limits within the first 30 seconds of use.  The OSHA maximum limit for carbon dioxide concentration in air that is available to the lungs is 400 parts per million. [24] 

Masks are also hazardous for particulate inhalation and incubated bacteria, both for the employee and those exposed to side jet propulsion of incubated bacteria.  [25]

PCR Nasal swab “tests”

PCR nasal swabs contain Ethylene oxide at the tips that contact mucosal surfaces all the way back to near the center of the head, near the cribriform plate.  US law provides that in case of ethylene oxide exposure the following is required, and this section applies to all occupational exposures to ethylene oxide (EtO):  “When employees could have eye or skin contact with EtO or EtO solutions, the employer must select and provide, at no cost to the employee, appropriate protective clothing or other equipment in accordance with 29 CFR § 1910.132 and 1910.133, to protect any area of the employee’s body that may come in contact with the EtO or EtO solution, and must ensure that the employee wears the protective clothing and equipment provided.” 29 CFR § 1910.1047 Subpart Z (g) (4).  [26]

Conclusion

The policy of my clinic is to uphold the United States Constitution.  As such, there is no authority for anyone at my place of business, or yours for that matter, to violate the rights of anyone else protected under the US Constitution and the Bill of Rights.  Therefore, no assault or threat of assault with hazardous materials or other weapons is tolerated.  Besides the US Constitution, OSHA policies and federal and state laws back me up on this, whether or not OSHA personnel or transient politicians agree.

Therefore, there will be no mandates of vaccines, other medical treatments, medical labs or tests that violate employee privacy, or facemasks or other suffocation devices. 

This document is hereby incorporated into the clinic’s Best Practices Manual, and I welcome others to share it freely for use by entrepreneurs who dare to take a stand against forcible chemical or physical assault of their employees, and who decide to assert Constitutionally and statutorily protected autonomy against government overreach.  In fact, as of tomorrow, there will be a sign hanging in our front office that reads, “The Policy of this Clinic is to uphold the United States Constitution,” just to put some extra emphasis on that fact, and to reassert the invincible predominance of the US Constitution over all matters that transpire in the United States.

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[1] The Fair Labor Standards Act of 1938.  29 USC § 203 Definitions.  https://www.law.cornell.edu/uscode/text/29/203

[2] Safety issues had been the responsibility of the Division of Industrial Hygiene (1914-1971) under the US Public Health Service, and that division later became the National Institute for Occupational Safety and Health (NIOSH) under the CDC.  NIOSH is research and recommendation-focused, while OSHA is a regulatory agency that enforces safety, often based on NIOSH recommendations.

[3] History Central. Labor unions in the 60’s.  https://www.historycentral.com/sixty/Economics/Laborunion.html

[4] Statista. Number of union members in the United States from 2000 to 2020.  https://www.statista.com/statistics/195339/number-of-union-members-in-the-us-since-2000/

[5] US Bureau of Labor Statistics.   Labor force statistics from the current population survey.  https://www.bls.gov/cps/cpsaat18.htm

[6] C Patteson.  Biden chief apparently admits vaccine mandate ‘ultimate work-around.’  NY Post.  Sep 10 2021.   https://nypost.com/2021/09/10/ronald-klain-retweets-vaccine-mandate-ultimate-work-around/

[7] United States Court of Appeals for the Fifth Circuit.  BST Holdings, LLC v Occupatinal Safety and Health Administration, No. 21-60845 (5th Cir. 2021).  Nov 12 2021.  https://law.justia.com/cases/federal/appellate-courts/ca5/21-60845/21-60845-2021-11-12.html

[8] E Colton.  Turley says Ron Klain’s vaccine retweet is legal issue for Biden: ‘Breathtakingly daft.’  Fox News.  Sep 10 2021.  https://www.foxnews.com/politics/jonathan-turley-biden-ron-klain-vaccine-retweet-daft

[9] United States Department of Labor  OSH Act of 1970.   https://www.osha.gov/laws-regs/oshact/completeoshact

[10] Code of Federal Regulations,  49 CFR § 172.101 – Purpose and use of hazardous materials table.  https://www.law.cornell.edu/cfr/text/49/172.101

[11] US Department of Labor.  Occupational Safety and Health Administration.  Hazard communication.  https://www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.1200

[12] US Department of Labor.  Occupational Safety and Health Administration.  Health hazard criteria.  1910.1200 App A.  https://www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.1200AppA

[13] Code of Federal Regulations. 29 CFR § 1910.1047 Subpart Z.   https://www.ecfr.gov/current/title-29/subtitle-B/chapter-XVII/part-1910/subpart-Z/section-1910.1047

[14] R Steyer, G Kappler. [article in German]  The higher the vaccination rate, the higher the excess mortality.  Nov 16 2021. https://www.skirsch.com/covid/GermanAnalysis.pdf

[15] S Kirsch.  The COVID vaccines are the most dangerous vaccines in human history… by a long shot.  Substack.  Nov 3 2021. 

The COVID vaccines are the most dangerous vaccines in human history... by a long shot

[16] M Whitney.  Depopulation agenda – Most vaccinated countries are all suffering an extraordinary rise in excess deaths.  The Expose.  Nov 21 2021.  https://dailyexpose.uk/2021/11/21/depopulation-agenda-most-vaccinated-countries-are-all-suffering-an-extraordinary-rise-in-excess-deaths/

[17] OpenVAERS.  VAERS COVID vaccine adverse event reports.  https://openvaers.com/covid-data

[18] A Chehab.  Miller, Canfield, Paddock and Stone PLC.  Appellate court halts OSHA’s Emergency Temporary Standard requiring mandatory COVID-19 vaccination or testing.  The National Law Review.   XI (325).  Nov 15 2021.   https://www.natlawreview.com/article/appellate-court-halts-osha-s-emergency-temporary-standard-requiring-mandatory-covid

[19] J Yoders.  Engineering News-Record.  OSHA imposes new guidance for employer-required COVID-19 vaccines.  May 3 2021.  https://www.enr.com/articles/51691-osha-imposes-new-guidance-for-employer-required-covid-19-vaccines

[20] US Department of Labor.  Occupational Safety and Health Administration.  Emergency Temporary Standard.  COVID-19 vaccination and testing ETS.  https://www.osha.gov/coronavirus/ets2

[21] W Feuer.   OSHA suspends Biden’s COIVID-19 vaccine mandate after court challenge. New York Post.  Nov 18 2021.  https://nypost.com/2021/11/18/osha-suspends-bidens-covid-19-vaccine-mandate/

[22] US Department of Labor.  Occupational Safety and Health Administration.  Hazardous waste operations and emergency response.  https://www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.120

[23]  B Borovoy, C Huber, M Crisler. Masks, false safety and real dangers, Part 3: Hypoxia, hypercapnia and physiological effects.  Nov 2 2020.  https://pdmj.org/papers/masks_false_safety_and_real_dangers_part3/

[24] Ibid.  Borovoy.  https://pdmj.org/papers/masks_false_safety_and_real_dangers_part3/

[25] B Borovoy, C Huber, M Crisler.  Masks, false safety and real dangers, Part 2: Microbial challenges from masks.  PDMJ.  Oct 9 2020.  https://pdmj.org/papers/masks_false_safety_and_real_dangers_part2/

[26] Code of Federal Regulations. 29 CFR § 1910.1047 Subpart Z.   https://www.ecfr.gov/current/title-29/subtitle-B/chapter-XVII/part-1910/subpart-Z/section-1910.1047