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.

Read the full article at National Review.