OSHA Vaccine Mandate — Trouble for Employers, Rough Time in Courts

The Biden administration today published its much-anticipated vaccine mandate for businesses that employ 100 or more people. This “emergency temporary standard” by the Occupational Safety and Health Administration (OSHA) is expected to apply to some 84 million people and be in effect by January 4.

CEI Research Fellow Sean Higgins warned that the impact on businesses and, thus, the economy will be harsh:

“The Biden administration’s legally dubious decision to force businesses with more than 100 employees to demand their workers be vaccinated will throw the economy into turmoil at a time when it is still precarious. Too many workers still haven’t re-entered the workforce, and too many businesses are struggling to fill the open positions they have. The mandate will exacerbate this problem.

“The most recent Labor Department numbers show that about half a million people dropped out of the workforce in September, and overall there are still two million fewer people employed today than when the virus hit. The slow return of these people to the workforce is having a negative ripple effect throughout the economy. A lack of workers is causing supply chain issues and hurting retailers. Restaurants are struggling to retain staff. Businesses that would expand cannot hire enough people to do it. 

“The administration’s new mandate will cause more people to stay home rather than find work and probably make some who have returned drop out as well. Managers of already understaffed businesses, meanwhile, will be put in the position of either firing workers that they would otherwise keep or flouting the law and risking the wrath of federal government fines starting at $13,000 per violation. Consumers will likely find inflation and shortages of goods getting worse as the economy slows. In short, nobody wins.

“On top of that, the administration is doing it at a time when new Covid-19 cases are declining anyway, having plunged 57 percent since peaking on Sept. 1.

“The Biden administration, which doesn’t have clear legal authority to do this to start with, justifies the decision on the grounds of public health. Too many people have refused to be vaccinated, so they have to be made to do it for their own good, or so the White House’s logic goes. Realistically, the people who thus far refused to get a shot are unlikely to have their opinions changed by this announcement. People that strongly opposed are just going to become more adamant because they will see this, not unreasonably, as simple coercion.

“To be clear: opponents of vaccinations should reconsider their stance. The potential downside of not getting vaccinated far outweighs the speculative odds that getting it could have a negative side effect. The faster we make this outbreak a matter of history, the better. The Biden administration’s mandate, however, is precisely the wrong way to go about this.”

CEI Attorney Devin Watkins warned that OSHA is wrong and on shaky legal grounds to impose such a mandate:

“In issuing the vaccine mandate, OSHA ignores people’s constitutional right to bodily integrity. Despite recognizing that ‘OSHA’s authority to regulate employers is hedged by constitutional considerations’, OSHA doesn’t even mention the right to bodily integrity that courts have recognized. 

“OSHA’s claims of ‘almost unlimited discretion’ are belied by the fact that of the six emergency standards issued prior to COVID that were challenged in court, two were vacated or partially vacated twice, and three others were stayed. Only once did OSHA successfully prevent a stay being issued. 

“Instead, OSHA’s claims of unlimited discretion will just raise issues under the non-delegation doctrine concerning if Congress has given enough direction.

“OSHA requires people with natural immunity to get vaccinated, ignoring epidemiological literature by calling it ‘unreliable’. OSHA based its conclusion on two direct antibody studies focusing on asymptomatic individuals. Even OSHA acknowledges that ‘some individuals who were infected with SARS-CoV-2 may have significant protection from subsequent infections’. Focusing on asymptomatic individuals to claim that symptomatic natural infections don’t have protections that many studies have shown hardly meets the grave danger and necessary requirements of the OSH Act.

“OSHA’s claims regarding the alleged risks of being unvaccinated represent the nanny state run amok. People should be encouraged to take the vaccine, not coerced into doing so, especially when they may already be immune.” 

CEI health policy expert Joel Zinberg explains why the “emergency” status of the mandate is unjustified:

“The Department of Labor’s Occupational Safety and Health Administration (OSHA) is following through on President Biden’s September directive to issue an emergency temporary standard (ETS) mandating that private employers with 100 or more employees ensure that their employees are fully vaccinated or undergo weekly negative COVID-19 tests with large fines for violations. 

“ETS are a way for OSHA to skirt the normal notice and comment rulemaking it is supposed to engage in. Yet, one has to wonder why it took the administration two months to act if there was a true emergency. OSHA had time to undertake the normal, more rigorous, rulemaking process.

“ETSs are rarely issued and even more rarely upheld. Prior to the COVID-19 pandemic, only nine ETSs had ever been issued with the most recent being in 1983. Six were challenged and courts vacated or stayed four of them and partially vacated another. It is likely this new ETS will share a similar fate.

“OSHA must demonstrate that workers face a ‘Grave Danger’ from workplace exposure to COVID-19 and that the standard is ‘Necessary’ to protect them.

“COVID-19 is a serious disease but it is not a specific workplace hazard. Moreover, for most workers, should they become infected, COVID-19 will be a mild or asymptomatic condition.  Prime age workers fall into the 25-55 age range. The COVID-19 infection fatality rate in this group ranges from 0.01 percent to 0.4 percent. The mortality risk is even lower for younger workers. This is hardly the ‘grave’ threat to justify an emergency mandate.

“OSHA previously issued an ETS in June requiring healthcare employers to limit workplace transmission with personal protective equipment such as face masks, six-foot physical distancing, physical barriers, and ventilation systems. OSHA claimed the ETS would protect workers, regardless of their vaccine status, in a health-care workplace, a setting in which they were especially likely to be exposed to infection. If nonpharmaceutical, noninvasive measures would be effective in a particularly dangerous workplace, why wouldn’t they be effective in workplaces in general? Why is it necessary to require invasive vaccines? 

“Finally, the ETS will not exempt people who have natural immunity from previous case of COVID-19 from the vaccination requirement. This decision ignores the science. A recent CDC overview of the evidence found that both vaccination and previous COVID-19 infection confer high levels of protection against subsequent infection and even better protection against symptomatic COVID-19 illness. Prior infection can be easily documented with a previous positive PCR or antigen test, an antibody test, or a T-cell test. More than third of the population has had and recovered from COVID-19. There is little reason to subject all these workers to an OSHA mandate.”