Biden Employer Vaccine Mandate: Defending National Federation of Independent Business v. Department of Labor
Ive here. We published this post on SCOTUS from Peter Dorman, who argues that the Biden administration’s vaccine mandate, an OSHA rule for businesses with 100 or more employees, is an over-regulation. Dorman is one of the few left-leaning persuaders to admit that OSHA rules are poorly designed (other than the dogmatic “body integrity” type) for not including other, far less intrusive Covid-safety measures to implement, Like face masks. Dorman also refreshingly pointed out that vaccines don’t do much to reduce transmission.
Regrettably, in a new post, Econspeak writer Barkeley Rosser complained that Virginia Gov. Youngkin had rescinded the vaccine authorization for state employees, citing the alleged danger to his health. Frustratingly, very few people understand that the Covid vaccine is not sterilized, and the only prospect that comes close to that level will be a nasal vaccine.
By Peter Dorman, professor of economics at Evergreen State College.Originally Posted in economic language
On January 13, the U.S. Supreme Court rejected the Biden administration’s vaccine authorization by a 6-3 vote. The policy takes the form of emergency OSHA (Occupational Safety and Health Administration) standards and requires all companies with more than 100 workers to mandate a vaccination or testing regime as a condition of continued employment. The conservative majority in the court argued that the measure was so far removed from the law’s original intent that it could not guarantee the respect usually accorded to administrative flexibility.
Putting aside the practical implications of the standard, I’ll come back and I think the court was right. The Occupational Safety and Health Act of 1970 created the administrative agency of OSHA with a focus on protecting workers. It is not intended to be a general tool for promoting public health for all.
Why do I think emergency Covid standards are not primarily for workers? After all, it does take the form of an employer mandate. The reason is that workers are already exposed to many risk factors for the virus that far outweigh their colleagues’ vaccine status, and the Biden administration has explicitly rejected any protections.
Poor ventilation in the workplace is extremely dangerous. The requirement to wear masks in indoor settings and to provide high-quality masks would be fully in line with the existing regulatory framework for personal protective equipment. Redesigning workplaces to reduce crowding would be a big step, as would testing everyone on a regular basis, but employers will pay for it. Finally, paid leave policies, while arguably a big step beyond traditional health and safety regulations, will have a huge impact on worker exposure to the virus.
Indeed, broad contingency standards encompassing many of these provisions were developed early last year, but the Biden administration has refused to adopt them. Instead, it issued only one standard for healthcare workers, leaving everyone else unprotected. Not surprisingly, the Supreme Court did approve vaccine mandates for this segment of the workforce: The executive decision to protect healthcare workers from multiple Covid risk factors makes it harder to argue that the additional protections provided by vaccine mandates are out of reach of the law .
The Biden administration has made clear through its actions that it has no intention of protecting workers as workers from avoidable pandemic risks. Its vaccine mandate is intended to apply to workers as part of a publicly available component, and if true, it goes beyond the intended scope of the OSHA.
This is supported by the practical effect of removing the standard. This could lead to fewer vaccinations and testing. However, since the Omicron variant dominates, vaccination status has little effect on infectivity, and the detection mechanism proposed in the standard is too weak to prevent a false-negative tsunami. The only corresponding outcome would be a higher proportion of cases leading to hospitalization, ICU use, and death. It’s scary, but its social cost is at the population level (pressure on the healthcare system, social disruption), not workers as workers.
I think vaccines or testing standards, despite their limitations, would have been on a better constitutional basis if the government also adopted broader workforce protections for all workers, as it did for health care workers. On a practical level, masking, testing, ventilation, and paid time off as general workforce tasks will have a greater impact on the course of the pandemic.
At the time of this writing, I am not espousing all the language of the majority, let alone the part of the population who express their agreement, which would greatly amplify the precedent effect of the decision. There was some odd attitude on that bench. But the central logic seems correct to me.