Injecting a Little Lawlessness

The most far-reaching and questionable part of the Biden administration’s six-pronged COVID-19 Action Plan directs the Department of Labor’s Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard (ETS) mandating that private employers with 100 or more employees ensure that all employees are fully vaccinated or undergo weekly negative COVID-19 tests with potentially hefty fines for each violation. While the specific ETS provisions and requirements are as yet unknown, this new directive — which will affect more than 80 million private-sector workers — is probably yet another episode of legally unauthorized Biden overreach that could impair economic growth.

Vaccination is the most effective way to limit the spread of the virus that causes COVID-19 and to mitigate the severity of the disease. As I discussed in an October 2020 study for the Competitive Enterprise Institute, well-established precedent gives states broad authority to issue vaccine mandates. Employers also have the ability — subject to compliance with various anti-discrimination statutes and the Americans With Disabilities Act — to require employee vaccinations. The pertinent question is: Does the federal government have authority to require employers to ensure their employees are vaccinated?

As with the CDC’s nationwide eviction ban — which the president acknowledged he lacked legal authority to extend, only to renew it days later — the Biden administration has repeatedly said that the federal government could not and would not impose vaccine mandates. On July 23, White House press secretary Jen Psaki said that mandates are “not the role of the federal government; that is the role that institutions, private-sector entities, and others may take.” A week later, CDC director Rochelle Walensky confirmed there would be no nationwide vaccine mandate.

Yet Biden seems unconcerned with legal niceties, evidently believing that his laudatory goal of increasing vaccination rates gives him the authority to order that it be done. In language more reminiscent of a monarch than a president, Biden scolded the unvaccinated: “We’ve been patient, but our patience is wearing thin.”

Section 6 of the Occupational Health and Safety Act of 1970 (OSH Act) gives OSHA the authority to impose health and safety standards on private-sector employers, the United States Postal Service, and the federal government as an employer. The act does not provide for OSHA regulation of state or local government agencies or employees.

Under section 6(c) of the OSH Act, an ETS can be issued without the normal notice and comment rulemaking process, if there is a determination: “(A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.” The standard can remain in effect for up to six months during which time the agency is supposed to pursue the full rulemaking process for a permanent standard.

The OSHA has rarely used its ETS authority. Prior to the COVID-19 pandemic, only nine ETSs had ever been issued and courts vacated or stayed four of them and partially vacated another. The most recent was in 1983 when OSHA issued an ETS lowering the permissible exposure limit for asbestos in the workplace — only to have it struck down by the Fifth Circuit Court of Appeals the following year. This record is unsurprising given the Supreme Court’s 1980 opinion in Industrial Union Dept. AFL-CIO v. American Petroleum Institute, which held that Congress originally intended to narrowly circumscribe the authority to issue ETSs.

Neither the OHS Act nor the courts have provided a clear definition of what constitutes a “grave danger” required to issue an ETS. Courts have held, though, that a “grave danger” required for an ETS represents a greater risk than the “significant risk” that OSHA must demonstrate to promulgate a permanent standard under normal rulemaking. While no one can deny that COVID-19 has presented a significant public-health threat, it is less clear how great a danger it poses to workers at this time. Estimates of fatality rates that account for the fact that most cases are asymptomatic or mild and have not undergone testing range from 0.4 to 0.7 percent. This is a little more than twice the rate for influenza, but hardly a grave danger.

And the danger now is substantially less than it was in the past. Roughly two-thirds of adults 18 and older are fully vaccinated. People in this age group make up most of the workforce. Another 10 percent have received a single shot, which provides protection, albeit less than the full two doses do. CDC seroprevalence data suggest that 25 percent of Americans have natural immunity from previous infection. Overall, about 80 percent of the nation has vaccine or natural immunity. In addition, the surge in Delta cases, new hospitalizations, and deaths nationwide has peaked and is declining. The likelihood that a particular worker is not vaccinated and will encounter an unvaccinated co-worker who is actively infected and shedding virus is low. The likelihood that he would be infected and go on to serious illness is even lower.

In addition to addressing a grave danger to employees, OSHA must demonstrate that the ETS is “necessary” to protect employees from the danger. It is doubtful they can meet this requirement when so many less invasive alternatives are available and often already required.

OSHA previously issued an ETS on June 21, 2021, to protect health-care workers from COVID-19 by requiring health-care employers to implement actions to limit transmission in the workplace including personal protective equipment such as face masks, six-foot physical distancing, physical barriers, and ventilation systems. The standard exempted workplaces in which all employees are fully vaccinated and individuals with possible COVID-19 are prohibited from entry. It also required employers to provide paid time off for employees to be vaccinated. OSHA justified the ETS by claiming it would protect workers, regardless of their vaccine status, in a health-care workplace where they were especially likely to be exposed to known or suspected infected persons.

If effective nonpharmaceutical, noninvasive measures are already available, why is it necessary to require vaccines? The Biden administration has consistently maintained that masks are highly effective in protecting against transmissions. If that is true, then what is the justification for also requiring a shot that is physically invasive? Most workplaces pose less of an infectious risk to workers than do health-care settings. In addition, many businesses and state and local governments have already imposed mask and distancing requirements. At most, extending the earlier ETS to all OSHA-regulated workplaces is all that is necessary to protect against the danger of transmission.

Even if vaccines are truly necessary, why will the ETS confine the mandate to employers with 100 or more workers? Most U.S. businesses have fewer than 100 employees and these smaller firms employ more than a third of U.S. employees. The 100-employee threshold could potentially decrease economic growth by creating an expansion disincentive for firms with 99 employees who were considering hiring more workers but want to avoid the burden of OSHA vaccination and reporting requirements and the responsibility and cost of testing unvaccinated employees every week.

Getting as many people vaccinated as possible is an important goal. Yet, as the Supreme Court noted in its recent decision ending the illegal and unauthorized CDC eviction moratorium, “our system does not permit agencies to act unlawfully even in pursuit of desirable ends.”