On September 15, President Biden announced a series of actions to confront the current Covid crisis arising out of the Delta Variant. The most controversial element of the planned actions was a mandate that businesses of 100 or more employees require their workers to be vaccinated or to present weekly proof of a negative Covid test. That action was met by immediate and vociferous objections not only from Capitol Hill Republicans, but also from several Republican Governors who promised lawsuits to block such a requirement.
As a policy matter, there is much to be said for Biden’s initiative. Clearly, the best way to blunt or reverse the dreadful surge of the Delta Variant is to get more people vaccinated, preferably by persuasion but, if necessary, by coercion. Tens, likely hundreds, of thousands of lives – and the health of the economy – depend on our ability to do just that. The political resistance to a vaccination mandate is, like the objections to mask mandates, irresponsible and, frankly, deplorable. Although polls show that the mandate has broad public support, Republicans see it as an issue to energize their base.
Legally, the path forward is far from clear. While there is no basis for Republican claims that the Biden mandate would be unconstitutional, there may be substantial hurdles as a matter of administrative law. The plan is for OSHA to impose the requirement as an Emergency Temporary Standard (ETS) which would shortcut the considerable delay involved in publishing a proposed rule for comment before it can be adopted and become law. Such standards are statutorily authorized when “necessary” to address “grave danger” in the workplace. The temporary standard may be in place for six months, during which time OSHA must develop and issue a “permanent” rule.
As Eugene Scalia, who served as Secretary of Labor in the Trump administration, observed in the Washington Post:
A public comment period confers more democratic legitimacy on administrative rules. It also improves the rules substantively. Courts appropriately review purportedly “emergency” rules more skeptically.
In this case, OSHA will have to persuade courts that the mandate is a reasoned and data-driven response to a workplace hazard and not merely a political maneuver to impose vaccinations on a substantial portion of the public. In that respect, OSHA’s case will not be helped by the “top down” way in which it was introduced by the President. Appearances were further complicated when Biden’s Chief of Staff, Ron Klain, retweeted MSNBC’s Stephanie Ruhle who had tweeted: “OSHA doing this vaxx mandate as an emergency workplace safety rule is the ultimate work-around for the Federal govt to require vaccinations.”
The factual predicate for the President’s decision is unclear, i.e. what data did he have as to Covid transmission in the workplace? What was the basis, for example, for the 100 employee cut-off? OSHA will have the burden of supplying the factual predicate, but given Biden’s order, it will not be writing on a clean slate. Clearly, it would have been preferable from a legal standpoint for Biden to have simply directed OSHA to consider the matter and left it to the agency to take it from there, evaluating the need for a mandatory standard and developing one.
OSHA had already addressed the issue of vaccinations in the workplace, but did so in the form of advisory guidance rather than a mandate. A June 10 issuance from OSHA included the following:
OSHA emphasizes that vaccination is the most effective way to protect against severe illness or death from COVID-19. OSHA strongly encourages employers to provide paid time off to workers for the time it takes for them to get vaccinated and recover from any side effects. Employers should also consider working with local public health authorities to provide vaccinations for unvaccinated workers in the workplace. Finally, OSHA suggests that employers consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated. People are considered fully vaccinated for COVID-19 two weeks or more after they have completed their final dose of a COVID-19 vaccine authorized for Emergency Use Authorization (EUA) by the U.S. Food and Drug Administration in the United States.
In litigation, OSHA can be required to produce the data available to it in June and then when the ETS is issued, and to explain what changed. Presumably, such data will have to focus not on Covid cases nationally, but on transmissions in the workplace; OSHA will also be called upon to explain why mandates for masking or other forms of protection are not sufficient in the workplace setting.
One of the thorniest issues that OSHA and employers will have to deal with is claims of exemption from vaccination on religious grounds. How will the sincerity of such claims be tested? Vaccine mandates for the workplace legislated in some states have already given rise to litigation over claims for exemption and left employers and their attorneys scrambling to determine how to deal with such claims. Now, most observers expect that the federal mandate will produce a major surge in claimed religious exemptions, including many from individuals whose true objections are based on their personal view of the vaccine’s science, or their political orientation, rather than a sincere religious belief.
A legitimate religious objection need not accord with an organized religion (in fact, the major denominations all support the Covid-19 vaccine.) Thus, as reported in the Economist:
Advice on asking for exemptions is easy to find online. One manual circulated by Rita Palma, an anti-vax activist, advises people to include key words such as sacred, holy and blessed. Emphasizing a personal understanding of God’s message and providing a cleric’s letter of support also helps. Some people whose objections have little to do with religion can probably fudge a religious excuse.
Nevertheless, while the current Supreme Court has been particularly sympathetic to assertions of religious liberty, the Court has long experience in separating the bogus from the bona fide. For example, in Burwell v. Hobby Lobby, Justice Samuel Alito, a staunch defender of religious liberty, observed that a for-profit corporation’s “pretextual assertion of a religious belief in order to obtain an exemption for financial reasons would fail.” But it will not be easy for employers to separate the pretextual from the genuine.
One question that could appropriately be asked of objectors is whether they have accepted other vaccines in the past. If so, they should not be heard to object to the Covid vaccine. In Gillette v. United States, the Supreme Court held that a conscientious objector seeking to escape the draft must show an objection to all wars and not merely the one for which he had been called up. So it should be with vaccinations.
I am hopeful that the OSHA standard will be issued in a timely fashion and withstand legal challenges. But, as President Biden has repeatedly found, nothing is easy. It the actions now underway fail to turn the corner on vaccinations and the Delta Variant, I suggest another possibility: taxing the unvaccinated. This would borrow from a provision of the Affordable Care Act (taxing the uninsured in that case) that was upheld by the Supreme Court in NFIB v. Sebelius. Such a measure might be difficult to sell politically, even among Democrats, but it should be considered if other approaches fall short.
I like the tax. The money collected should go to medical care, hospitals, equipment, etc. as part of their responsibility as citizens.
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