January 4 for Business of Over 100 Employees
Biden draws his power from the Occupational Safety and Health Act (OSHA), which Congress enacted in 1970 to address a weak patchwork of state worker-safety laws. The act granted the federal government wide, but not unlimited, authority to set national workplace safety standards.
OSHA has regulated infectious diseases several times, including standards for blood-borne pathogens to combat HIV and hepatitis. The fact that the coronavirus is circulating in the community does not make it less of a workplace hazard. Indoor workspaces pose a special risk because many workers remain crowded indoors for eight hours.
It is true that states, not the federal government, possess the constitutional power to prevent the spread of infectious diseases. But that doesn’t mean the federal government lacks public health powers. Congress authorized federal quarantine powers in 1796. And the Centers for Disease Control and Prevention has been exercising extensive power to prevent the interstate or international spread of infectious diseases since Congress enacted the Public Health Service Act of 1944.
He is acting under a law enacted specifically to regulate workplace safety through the Occupational Safety and Health Administration. Congress’s constitutional power to set national workplace safety standards derives from the commerce clause and isn’t controversial. Courts have upheld OSHA’s powers to regulate the workplace for half a century. The agency’s emergency rule isn’t even breaking new ground; it’s only unprecedented because of its scope.
OSHA is acting well within what it was designed to do — setting workplace safety standards — and using traditional tools to fight infectious-disease hazards, such as vaccination, testing and masking.
The highly contagious Delta variant isn’t a false or exaggerated emergency; it is a clear and present danger. More than 1,000 people are dying everyday from covid-19, including many infected in the workplace. OSHA conservatively estimated its new rule would prevent more than 6,500 deaths and 250,000 hospitalizations. A long notice-and-comment period would have cost thousands of lives. If the pandemic isn’t an emergency, it’s hard to say what would be.
OSHA has met the statutory criteria for an emergency rule: It has demonstrated a “grave” workplace danger and that the measures are necessary to prevent it. OSHA didn’t apply its rule to workers who are at reduced risk, such as remote workers or those working outdoors. This careful line-drawing should help the rule withstand scrutiny.
The rule is also necessary and proportionate because coronavirus vaccines are the single-most effective prevention of transmission, hospitalization and death available. The testing and masking edicts are evidence-based prevention tools, too. There is also an added public benefit because behavioral science research tells us that most people will choose to get the vaccine rather than undergoing regular testing and masking, and workers won’t want to bear the financial cost of testing. If a free vaccination is the easier, default choice, it will boost vaccination rates, benefiting everyone.
Take a step back to understand what opponents of Biden’s mandates are saying. They’re claiming that workers have a right to go to work without vaccinating, testing or masking. Ignoring all that we know about the rapid spread of the delta variant in crowded indoor spaces would be reckless. Congress wisely granted OSHA the power and duty to ensure that workers can safely return to their loved ones. The courts should not second-guess professional health and safety experts.
Legal Challenges
A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit held that challengers were likely to succeed in their claim that the mandate was an unlawful overreach.
The ruling by the panel of the Fifth Circuit is unlikely to be the final word. Some challenges to the mandate are in other circuits, and the cases will be consolidated before a randomly chosen one of those jurisdictions.
The Supreme Court is expected to eventually decide the matter.