Is the Biden administration’s vaccine mandate constitutional?
As part of President Biden’s Sept. 9 announcement, he stated: “The Department of Labor is developing an emergency rule to require all employers with 100 or more employees, that together employ over 80 million workers, to ensure their workforces are fully vaccinated or show a negative test at least once a week.”
The U.S. Supreme Court has repeatedly upheld the constitutionality of vaccine mandates. Yet, these rulings do not necessarily provide a legal basis for the Department of Labor’s mandate or address the practicality of such a broad government agency enforcing a vaccine mandate.
The strongest argument for Biden’s mandate can be taken from the Occupational Safety and Health Act of 1970 (OSH), which seeks to protect workers and ensure workplace safety.
The argument is that COVID-19 creates a dangerous environment for workers. Therefore, a vaccine mandate is justified to protect workers from a possible dangerous work environment.
The traditional process of updating Occupational Safety and Health Administration (OSHA) regulations can take years of public debate. Congressional Research Services says that it can take almost eight years or more.
This traditional route would not be pragmatic for combating the COVID-19 pandemic, but OSH does grant the Secretary of Labor the ability to issue “emergency temporary standards” when “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful.”
In order to enact such a standard, the secretary would need to do three things:
- Establish that a harmful substance exists.
- Demonstrate that the substance is a “grave danger.”
- Ensure that alternative options for dealing with the substance have been considered.
At this point, it is probably impossible to successfully argue that COVID-19 and the Delta variant are not a harmful substance, so the problem is more likely to arise with the next two requirements.
The phrase “grave danger” is open to a lot of interpretation. Its ambiguity opens the door for a significant legal challenge, forcing courts to decide if the pandemic is a “grave danger.”
Courts have avoided making such a ruling for the last 100 years, leaving that up to local public health officials. Yet, there is no guarantee that courts in general, and the Supreme Court, specifically, will continue this tradition.
The other issue is that OSHA will have to ensure that other options for dealing with COVID-19 are not deployable.
Prior to COVID-19, the last time the emergency provisions were used was during the Reagan administration when OSHA attempted to reduce the level of asbestos workers were exposed to by 75%.
The rule was struck down in the Fifth Circuit Court of Appeals in Asbestos Information Association v. OSHA (1984) because OSHA had failed to significantly consider alternative options, such as respirators.
Interestingly, the court saw the possible loss of 80 lives out of 375,399 workers (.0002%) as significantly grave. This is a fraction of the mortality rate faced by the average American during the COVID-19 pandemic (.02%).
While any court would likely deem the pandemic a “grave danger,” this past ruling opens the door for endless debate about social distancing, masking and other preventative measures as alternatives to a federal vaccine mandate.
At a minimum, the Biden administration will need to demonstrate why a vaccine mandate is better than a mask mandate.
While we can assume there will be many legal challenges to Biden’s mandate, the outcome remains uncertain.
The makeup of the courts has changed dramatically in recent years, with both the Fifth Circuit and the Supreme Court now dominated by Republican-appointed judges.
While it is hoped that such a significant ruling would be unbiased, it is still unknown if OSHA can overcome the “grave danger” and alternative option requirements for an emergency standard.
This still does not take into account how long these legal challenges will take. Courts typically set their own timelines and legal challenges could easily spillover into next summer, delaying a mandate’s enactment.
This brings up two pragmatic issues.
First, the White House’s plan involves 80 million workers at private companies. While possible non-compliance fines are very steep, OSHA may not have sufficient resources to force companies to comply.
The number of whistleblower cases or employees complaining to OSHA’s hotlines will be staggering. The agency would not be able to monitor vaccine compliance and continue to fulfill its pre-COVID-19 role, potentially placing lives at risk.
Second, the length and scope of an emergency standard needs to be considered.
Emergency standards are only good for up to six months. Since it is clear that COVID-19 is going to be with us for awhile, will a six-month rule be sufficient? If not, will the president just enact another executive order at the end of this time period? Is that even a legal approach?
Further questions relate to the expansion of OSHA. Will this provide a precedent for future non-legislated expansion of the entities’ powers? Could this strategy be used to enact other public health initiatives without legislative approval?
While it might be a good thing that OSHA creates an emergency standard, some limits on OSHA’s power have to be established, or the executive branch could violate the separation of powers and possibly civil liberties without just cause.
This is of a broader concern than a vaccination mandate. It raises questions that must be answered about how we will enact public health incentives now and in the future.
Editor’s note: This is the second article in a two-part series. Part one is available here.