Will The Biden/OSHA Employer Mandate To Vaccinate Employees Stand?

What’s the REAL Substance Of The OSHA Vaccine “Mandate/Rule?”

The Biden administration unveiled its emergency rule for COVID-19 protections for large companies that employ roughly two-thirds of the American workforce to adopt mandatory vaccination policies or take alternative steps. The new Occupational Safety and Health Administration (OSHA) rule came two months after President Joe Biden announced a series of measures that he said would help swiftly end the pandemic.

“Vaccination requirements are good for the economy,” Biden said in a statement, avoiding the word mandate to describe the OSHA rule. “They not only increase vaccination rates, but they help send people back to work – as many as five million American workers. They make our economy more resilient in the face of COVID and keep our businesses open.” The president said that while he would have preferred to avoid the rule, “too many people remain unvaccinated for us to get out of this pandemic for good.”

Republicans on Capitol Hill responded with fury at the announcement. A group of GOP lawmakers said they would try to use the Congressional Review Act, which allows Congress to block new federal regulations in some circumstances, to nix the OSHA rule. Other members expressed support for a bill that would abolish OSHA altogether because of the announced rule. Florida state lawmaker Anthony Sabatini even urged “every Republican state” to nullify the federal rule and arrest OSHA officials who try to enforce ita proposal that would violate the Constitution’s Supremacy Clause and spark a constitutional crisis.

In nearly every statement other than Biden’s, and in many news reports on the matter, the OSHA rule was described as a “vaccine mandate.” But this is not actually correct. The new rule is better understood as a testing mandate with a vaccine exception—and that distinction could be crucial as it works its way through courts of law and public opinion.

What did OSHA actually do? The agency unveiled what is known as an “emergency temporary standard,” or ETS, on COVID-19 vaccination and testing for most companies with more than 100 workers. The ETS is roughly 490 pages long, with fewer than two dozen pages dedicated to the rule itself and the rest devoted to its justification. It requires eligible companies to do a few things to make vaccinations easier for their employees to obtain: provide paid time off so workers can get vaccinated and recover from any side effects, maintain lists of which workers have already been vaccinated, establish a notification system for workers who test positive, and other administrative requirements. It also generally requires employers to tell unvaccinated employees to wear masks.

What the agency will not be doing is forcing anyone to get a vaccine – at least, not directly. According to OSHA, the ETS requires companies to “develop, implement, and enforce a mandatory COVID-19 vaccination policy.” But – and this is a big but – there is a pretty clear way around this. The affected companies can forgo a vaccine mandate policy if they “instead establish, implement, and enforce a policy allowing employees to elect either to get vaccinated or to undergo weekly COVID-19 testing and wear a face covering at the workplace.”

Imagine that you’re the CEO of a Fortune 500 company. OSHA has effectively presented you with two choices. Your first option is to order your workers to get vaccinated to comply with OSHA’s requirements. Your second option is to order your unvaccinated workers to get regular testing and wear face coverings while on the job. Though the Biden administration is framing the vaccine-mandate part of the ETS as the default and the testing-and-masking part as an exemption to it, there’s no reason it can’t be the other way around.

That might sound like a meaningless distinction for some workers who may now be compelled to get vaccinated either way. But there’s a difference between a mandate imposed by the government and one imposed by a company. In the actual ETS, OSHA said that an employer-based vaccine mandate, as opposed to one from OSHA itself, “will be the most effective approach for increasing the vaccination rate of its employees and ensuring that they have the best protection available against the worst consequences of a COVID-19 infection.”

And while OSHA claimed in the rule that it “may well have the authority to impose a vaccination mandate” itself, the agency said it instead decided against “pursuing [a] strict vaccination requirement” in favor of a rule that would “strongly encourage” vaccines. “OSHA’s traditional practice when including medical procedures, such as medical surveillance testing and vaccinations, in its health standards has been to require the employer to make the medical procedure available to employees, and has viewed mandating those procedures as a measure to avoid if possible,” the agency explained.

OSHA outlined a few benefits of mandating vaccines for employers themselves. “Most obviously, employers with a mandatory vaccination policy ‘should’ enjoy a dramatically reduced risk that their employees will become severely ill or die of a COVID-19 infection,” the agency said. Of course, if companies always cared so deeply about their workers’ health and welfare, OSHA wouldn’t exist. So it also discussed the cost-benefit problems of having a largely unvaccinated workforce, which is more likely to have higher rates of worker absences for illness.

The real benefit for employers who issue a vaccine mandate is saved for last in OSHA’s explanation. “Additionally, only employers who decline to implement a mandatory vaccination program are required by the rule to assume the administrative burden necessary to ensure that unvaccinated workers are regularly tested for COVID-19 and wear face coverings when they work near others,” the agency noted. In other words, under the new rule, it may be cheaper for large companies to tell workers to get the shot rather than pay for thousands of weekly COVID-19 tests.

There are some exceptions, of course. The rule does not apply to workers who telecommute or otherwise don’t work around other people, where there is no risk of workplace transmission, as well as workers who work entirely outdoors, where the transmission risk is dramatically lower. Companies with fewer than 100 workers are also exempt, OSHA said because they are less able to shoulder the administrative burden relative to the public health benefits. The OSHA rule also works in concert with existing bona fide vaccine mandates issued by the Biden administration: It recently issued vaccine mandates for federal employees, for workers at companies with government contracts, and for the entire U.S. military.

As with virtually every other aspect of American life, litigation over the OSHA rule was inevitable, and the lawsuits are already flying! One question for courts to resolve will be whether COVID-19 counts as a “grave danger” under the law that allows OSHA to issue an ETS in the first place. Another one that will likely attract the courts’ attention is whether workers can seek religious exemptions from company-imposed vaccine mandates, especially when enacted under the weight of an OSHA rule. Conservative legal groups have already filed multiple lawsuits against the Biden administration to block the rule on more general grounds. The Supreme Court’s conservative majority, which is generally wary of federal regulatory power, may be more inclined to uphold a vaccine mandate that, well, doesn’t actually mandate vaccines for anyone.

So why doesn’t the Biden administration just call it a testing mandate or something like that? The White House’s use of the phrase “vaccine requirement” suggests that it’s trying not to use the phrase “vaccine mandate,” while also trying not to say, “It’s not a vaccine mandate.” Perhaps the most likely answer is that the administration wants Americans to think there’s a massive federal vaccine mandate without actually risking the legal or political consequences of imposing one. It’s more practical – and perhaps more quintessentially American – for the government to outsource a coercive policy goal to the private sector instead of doing something itself.

Indeed, large companies like Google, Ford Motors, and Tyson Foods have already mandated vaccines for their workers. Other employers who might want to issue mandates can now say, “Hey, don’t blame us, we’re just trying to comply with OSHA here.” To make things easier, the OSHA rule also supersedes state and local bans on vaccine and mask mandates in Republican-led parts of the country. Obviously, many are hopeful that if the courts allow it to take effect, the rule may yet prompt enough companies and enough workers to get the shot to help end the pandemic for good. Just don’t call it a vaccine mandate.

Courts Already Ruling In Mandate/Rule Cases Filed

The litigation is rampant, but just beginning. State and federal courts have been flooded with suits. The Biden administration will inevitably ask the Supreme Court to review the decision by the 5th Circuit Court of Appeals to halt its vaccine mandate, which it reaffirmed when the Biden Administration instructed American companies to ignore the Court’s initial ruling. The Biden effort at the SCOTUS is likely to be futile, however. Writing for the 5th Circuit Court of Appeals, Judge Kurt Engelhardt confidently predicted that the mandate’s challengers “are likely to succeed on the merits” under judicial review. Engelhardt took particular exception to the attempt to impose the mandate through the Occupational Safety and Health Administration (OSHA), pointing out that the Constitution’s Commerce Clause and the nondelegation doctrine preclude OSHA from making such “sweeping pronouncements on matters of public health affecting every member of society in the most  profound of ways.”

The decision also declared the mandate “fatally flawed on its own terms,” emphasizing that it purports to “save employees with 99 or more coworkers from a ‘grave danger’ in the workplace while making no attempt to shield employees with 98 or fewer coworkers from the very same threat.” This seriously undermined the administration’s claim that the purpose of the mandate is a response to a genuine national emergency: “The underinclusive nature of the Mandate implies that the Mandate’s true purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary.” This created questions concerning OSHA’s use of the emergency temporary standard (ETS):

As the name suggests, emergency temporary standards “are an ‘unusual response’ to ‘exceptional circumstances.’” Thus, courts have uniformly observed that OSHA’s authority to establish emergency temporary standards under § 655(c) “is an ‘extraordinary power’ that is to be ‘delicately exercised’ in only certain ‘limited situations.’” But the Mandate at issue here … is a one-size fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly “grave danger” the Mandate purports to address.

The appeals court goes on to point out that President Biden and OSHA have both undermined the legitimacy of the mandate by contradicting their own prior positions concerning the need to impose such a measure. Judge Engelhardt quotes Biden’s answer to a question posed to him on December 4 of last year concerning whether vaccines should be mandatory: “No, I don’t think [they] should be mandatory. I wouldn’t demand it be mandatory…” The judge also quotes a D.C. Circuit Brief filed by OSHA in May of 2020: “Based on substantial evidence … an ETS is not necessary both because there are existing OSHA and non-OSHA standards that address COVID-19 and because an ETS would actually be counterproductive.”

At length, the 5th Circuit points out what should be a blindingly obvious practical dilemma associated with the vaccine mandate – it is far too unwieldy to implement efficiently. As the decision phrases it, “The Mandate is staggeringly overbroad, applying to 2 out of 3 private-sector employees in America in workplaces as diverse as the country itself.” Nor was it lost on Judge Engelhardt that the hare-brained scheme to implement the mandate using OSHA was hastily cobbled together by staffers. As Constitutional scholar Jonathan Turley points out, the decision includes a footnote indicating that White House Chief of Staff Ron Klain was foolish enough to advertise it as an end-run around the Constitution:

Klain acknowledged that the use of OSHA was a “work around” in light of the constitutional barriers preventing President Biden from ordering a national mandate directly.… The Fifth Circuit decision could now lead to a showdown in the Supreme Court where Klain’s tweet could be again highlighted. This is a challenge that alleges that the OSHA rule was a thinly disguised attempt to circumvent the Constitution. Klain then rushed to remove even that thin veneer by heralding the “work around” of the constitutional limitations. It is an “admission against interest” that is likely to be repeated in litigation in a variety of cases.

This blunder will raise eyebrows at the Supreme Court when the Biden administration appeals the 5th Circuit ruling. Even the Court’s most liberal justices will take a dim view of such contempt for the Constitution. Yet the Biden Department of Justice insists that it will “continue to vigorously defend the standard and looks forward to obtaining a definitive resolution following the consolidation of all of the pending cases for further review.” Their argument, however, depends less on the constitutionality of the mandate than the manipulation of public opinion: “With the reopening of workplaces and the emergence of the highly transmissible Delta variant, the threat to workers is ongoing and overwhelming.”

But, as Judge Engelhardt writes, “The public interest is also served by maintaining our constitutional structure and maintaining the liberty of individuals to make intensely personal decisions according to their own convictions – even, or perhaps particularly when those decisions frustrate government officials.” That, in the end, is exactly what the entire controversy is about. No president possesses the authority to order private citizens to get vaccinated or command private businesses to enforce a vaccine mandate. Moreover, when Congress created OSHA, it didn’t authorize the agency to enforce anything resembling such an edict. Thus, the mandate will be DOA when it hits the SCOTUS docket.

Summary

Care for my opinion on the matter? (Here it is whether you want it or not!)

I think the Biden Administration purposely used the OSHA rule in an attempt to sidestep direct pushback against the Administration which can say easily, “We didn’t mandate anything. It’s an OSHA ‘Rule,’ not a mandate. So go talk to them.”

One might think saying that is just confirmation of what Biden has stated publicly when asked about his issuing a vaccine mandate. But I think there’s far more to this process.

First, Democrats NEVER do anything “off the cuff:” everything they do is carefully planned and implemented. Believing that is so in this case, an obvious question arises: what’s their reasoning, and what’s the hoped-for end result?

I’m confident they KNEW the Rule is likely to fail the scrutiny of the U.S. Supreme Court and will eventually be ruled unconstitutional. But even if that happens, it will NOT happen for a month or more.

What’s the benefit of that? Thousands if not millions more Americans will say, “Well, my company is requiring we all abide by the Vaccine mandate, so I’ll just go ahead and get it now.”

Bingo! Biden will have accomplished getting many more vaccinated, and no one can “blame him for trying.”

In other words, these actions fit exactly what Democrats do in almost every major situation: find ways to at least “say” they did what they promised to do, but will be able to say, “Someone else stopped us!”

“Symbolism over Substance” wins again!

And the American people will pay the price just like always.

 

 

 


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