Column: The Issue with OSHA’s Vaccine Mandate

Demonstrators gathered outside the Supreme Court to voice concerns over the vaccine mandate. Source: Al Drago | Bloomberg | Getty Images

On January 13, the Supreme Court heard arguments on the Occupational Safety and Health Administration’s (OSHA) vaccine mandate in which it issued a stay in a 6-3 majority. A stay is an action taken by a court to temporarily block litigation. Vaccine mandates are controversial and policies like the one before the Supreme Court have divided the American public. However, to understand the ruling, it is important to understand the legal reasoning and disregard the politics.

On September 9, 2021, President Biden announced he desired a vaccine mandate; however, no such mandate materialized until November 5, 2021, when the Secretary of Labor issued one. The Secretary issued the mandate through OSHA, which required employees to either be vaccinated or receive weekly tests at their own expense. The mandate is only applicable to employers with at least 100 workers –around 84 million workers total– and would override any contradicting state law.

OSHA argues it is their right and duty to effect such a mandate for workers’ safety; however, 27 states and several businesses disagree. Congress created OSHA in 1970 and made it responsible for enforcing occupational health and safety standards. Thus, OSHA is able to implement any standard it deems necessary as long as it is “reasonably necessary or appropriate to provide safe and healthful employment.” Additionally, the standards must be subject to notice, comment, and a public hearing.

In regards to the mandate, the Secretary argues not only is it reasonable, but that OSHA has been allowed “emergency temporary standards” to fight the pandemic; therefore, the mandate is excluded from the customary criteria. However, the emergency powers are permitted if the Secretary can show that “employees are exposed to grave danger from exposure of substances or agents determined toxic or to be physically harmful,” and they are necessary to protect employees from the hazard. It should be noted that powers such as these have only been implemented nine times prior to the COVID pandemic, but never this broadly. Furthermore, six of the nine were challenged in court with only one upheld in its entirety. Thus, it appears the Court desires to keep emergency powers in check.

The argument in favor of the mandate is that OSHA was simply fulfilling its duty by attempting to limit the effect of a workplace hazard. The dissenting justices believe that COVID meets the criteria of a workplace hazard. They also claim that the Court does not have the ability to limit an agency’s discretion unless it is supported by text (for example the Constitution). Furthermore, they argue some policies are allowed even if they are not confined to the workplace. For example, the dissenting justices cite OSHA’s regulation of clean drinking water because it was not limited to the workplace, and yet it was deemed appropriate. Although this example is accurate, it misses the point of the pushback. Not only has access to clean water been declared a human right by the United Nations, but it is also not something people are being forced to take such as the case for the vaccine mandate. Water is necessary for life and although vaccines are beneficial in fighting disease, they are not necessary to live. Herein lies the difference.

The majority’s argument for issuing a stay is twofold. First, they believe OSHA is acting outside its purview, and secondly, they believe a decision of such magnitude should be left to elected officials. Federal agencies are granted a certain amount of power and the majority finds OSHA’s mandate to extend beyond its given powers. Essentially, the mandate is not classified as an “everyday exercise of federal power” because the mandate is seeking to regulate public health as a whole and not only hazards pertaining to the workplace. Not only do opponents of the mandate argue the decision is not within the scope of OSHA’s authority, but they also argue that COVID does not meet the criteria of workplace hazards because transmission does not occur only in the workplace. The Court continues this thought by stating OSHA’s powers are limited to unique dangers in the workplace, such as asbestos. Although asbestos can be found in homes as well as the workplace, it presents a unique danger to employees if present in the workplace and not simply walking down the street for example. 

The second part of the argument is that OSHA is making a decision that should be left to elected officials. OSHA’s power is directly tied to Congress. Congress has not given OSHA such power to regulate public health and in fact has rejected a mandate of such magnitude when Senate Resolution 29 was voted down on December 8, 2021. Furthermore, the Supreme Court ruled in Alabama Association of Realtors v. Department of Health and Human Services (2021) that “we expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” This is not the case for OSHA. Regardless of Congress’ decision, it still has not granted federal agencies the power to issue a mandate. Therefore, the majority views this effort by OSHA to be a legislative “work-around.” According to the majority, if OSHA’s efforts were to succeed, there would be problems because it would violate the major questions doctrine. This doctrine states that federal agencies attempting to regulate the daily lives of Americans must trace their power back to Congress, and failing to do so would allow bureaucracy to “supplant government by the people.” However, this argument is moot because the court argued even if Congress did grant such powers, it would be unconstitutional because it would not meet the constitutional delegation of legislative authority.

Regardless of the feelings involved in this case, the Court is not attempting to give instruction on how to fight the pandemic but rather who has the authority to lead the fight. The desire to end the seemingly never-ending pandemic has led Americans to put a lot of faith in the federal government — which can be dangerous. The United States has checks and balances and separation of powers for a reason. If these were neglected, it could set a dangerous precedent. Some businesses have already implemented vaccine requirements on their own terms or because of a state mandate; however, a federal mandate carries a heavier weight and attempts to usurp state sovereignty. After all, the 10th amendment provides the states with the authority to oversee public health, not the federal government.