By Douglas Rosa | | Contributing Writer
On June 9, 2021, President Biden announced a legally questionable vaccine mandate for American workplaces with over 100 employees. Once put into effect, over 100 million Americans will be required to get at least one dose of the vaccine, including over 80 million Americans employed in the private sector. $13,500 worth of fines would additionally be added for each individual mandate violation.
President Biden’s announcement consisted of an order to the Department of Labor to issue an emergency temporary standard (ETS) under the Occupational Safety and Health Act (OSH Act). Federal law allows the Occupational Safety and Health Administration (OSHA) to issue an ETS if it can prove that workers are “exposed to a grave danger” and that “such emergency standard is necessary.” OSHA would need to prove that COVID poses a “grave danger” to American workers. This becomes complicated, however, with the wording of the OSH Act and the context in which it is applied.
With the legal facts of the mandate considered, I believe the mandate to be unconstitutional and outside the authority of both the executive branch and OSHA. The mandate would need to survive more than the grave danger test to survive legal challenges. The mandate would then need to pass the necessity test, which would entail proving that “that such emergency standard is necessary to protect employees from such danger.” Over 64% of Americans having at least one dose of the vaccine and young workers in good health are at a lower risk of hospitalization or death from COVID. Workers who have previously contracted COVID possess a lower risk of contracting the virus than those who are unvaccinated and have yet to catch it.
The Courts have rightfully shown caution and suspicion of previous ETSs that the OSHA has attempted to implement. This is due to ETSs forgoing the standard notice and comment process and being implemented effectively immediately upon publication. Since its founding in 1971, OSHA has issued nine ETSs, the most recent having been in 1983. Of the six ETSs challenged, five were either partially or completely struck down by federal courts for being overly broad.
The ‘Health’ part of the OSH Act focuses specifically on “a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” If the act is focusing on poor health conditions within the workplace, how reasonable can it be to include COVID? Any strand of COVID contracted by workers would have come from outside the workplace, a regulation far outside that of OSHA and the federal government.
This is assuming that the actions taken by the Biden administration are constitutional. The Supreme Court ruled in Jacobson v Massachusetts (1905), that the compulsory vaccination laws imposed by the states did not violate the 14th amendment if they were “necessary in order to protect the public health and secure the public safety” while maintaining that forcing vaccinations on people with underlying health conditions is“cruel and inhuman”. The ruling designated vaccine mandates as a power granted to the states, not the federal government.
We are already seeing legal challenges to Biden’s mandate beginning to emerge across the country. On Thursday, September 16, 24 Republican-led states announced plans to sue the Biden administration over the vaccine mandate. The letter, written and signed by the attorney generals of each state, expressed skepticism over OSHA’s ability to meet the high standards needed to prove a “grave danger” to workers. On the 14th, Arizona attorney general Mark Brnovich filed the first official lawsuit against the federal government.
This anti-mandate sentiment has been reflected in the business world. Rather than increase vaccinations and boost the economy, I think that this mandate will only worsen the economic woes that the pandemic has placed on businesses. Many businesses have cited risks of increased labor shortages caused by layoffs or resignations of employees who refuse to comply with the mandate. The Association of General Contractors, a group that represents over 27,000 construction firms, warned the White House that the mandate could “exacerbate the industry’s workforce shortage and significantly increase federal project costs and delays.” Small businesses have voiced concerns over having the ability to afford the costs of vaccinating their workers or providing weekly tests. The immediate implementation of the completed mandate will only cause small businesses to suffer, further hampering the economic recovery.
Everyone who is eligible to be vaccinated and can be vaccinated should get it as soon as possible. Anti-vaccination sentiment by those who remain suspicious of science should be convinced through discussion and evidence, not by force from the executive branch. While we have yet to see the final version of the mandate, I refuse to support something that will breach the executive branch’s constitutional authority.
First-year Douglas Rosa is a contributing writer. His email is drosa@fandm.edu.