- Require employees to get vaccinated against COVID-19
- Require unvaccinated employees to produce evidence of a negative COVID-19 test each week
The 24 states who signed the letter made the following key allegations against the mandate, among others:
- It will affect the job market and the ability to fill positions.
- It will increase vaccine skepticism.
- It is too broad, not accounting for nuanced employee situations.
- It is outside of OSHA and federal executive authority to issue such a mandate.
Walter Olson, writing at CATO, further explains:
A word is in order about the two ways OSHA adopts rules. The standard, accepted way is to put them through the process known as “notice and comment,” building a record that it is hoped will result in more rational standards and, whether or not it does that, prepares the way for judicial review by, for example, putting the agency on the record against major objections as to its rationale for the rule.The emergency process bypasses these protections for the regulated and for judicial review as a check. True, the process as foreseen is one in which OSHA is supposed to start developing a rule the regular way, which would at some point catch it up with the need to base its rules on a reasoned public justification. But that comes afterward. In the meantime it can use the excuse of emergency to regulate first and explain later.To use the emergency decree power, according to the agency’s website, “OSHA must determine that workers are in grave danger” and that an emergency standard “is needed to protect them.” That is a vague and open‐ended standard, but even so it opens up one set of possible challenges. Is a test‐or‐vax mandate that applies even to employees who work from home, or who have already contracted the virus and recovered, truly needed to protect other workers from “grave danger”?Even when OSHA makes rules through its conventional process, there are real constitutional questions about the limits of its authority. In 2008, Harvard University law professor Cass Sunstein, who went on to serve as former President Barack Obama’s regulatory chief, published an article entitled “Is OSHA Unconstitutional?” He addresses the problem of “nondelegation” arising from Congress’ having seemed to bestow on the agency such wide powers, akin to those of a legislature, with so few checks.
Is it Legal?
Obviously, this is a rather large step taken at a federal regulatory level. I expect numerous legal challenges and would not be surprised if this action was delayed, perhaps even significantly so, while the court system decides if OHSA has the authority to require large employers to mandate vaccines for employees. The fact that the President directed OSHA to make this applicable only to employers with more than 100 employees signifies that the Biden Administration believes U.S. Constitution's Commerce Clause provides the lawful basis for the regulation.
The Commerce Clause refers to Article 1, Section 8, Clause 3 of the U.S. Constitution, which gives Congress the power to regulate commerce with foreign nations, and among the several states.
Obviously, this is a rather large step taken at a federal regulatory level. I expect numerous legal challenges and would not be surprised if this action was delayed, perhaps even significantly so, while the court system decides if OHSA has the authority to require large employers to mandate vaccines for employees. The fact that the President directed OSHA to make this applicable only to employers with more than 100 employees signifies that the Biden Administration believes U.S. Constitution's Commerce Clause provides the lawful basis for the regulation.
The Commerce Clause refers to Article 1, Section 8, Clause 3 of the U.S. Constitution, which gives Congress the power to regulate commerce with foreign nations, and among the several states.
"The Congress shall have Power . . . ] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"
The idea is that employers with more than 100 employees are almost certainly going to be engaged in interstate commerce or commerce across a state line. That, in and of itself, is a bold assumption. While it may be the case in most cases, it certainly is not a hard and fast rule.
In addressing PPACA's Individual Mandate in 2012, the Supreme Court held that the individual mandate could not be enacted under the Commerce Clause. The Court stated that requiring the purchase of health insurance under the AFA was not the regulation of commercial activity so much as inactivity and was, accordingly, impermissible under the Commerce Clause. The question in evaluating this new regulation will be - is the requirement that an employer with 100 or more employees compel employee vaccinations a regulation that necessarily governs interstate commerce?
Here is a sampling of legal thought on the topic:
- Mark Barnes, a former associate health commissioner of New York who teaches health law at Yale Law School, said he expects the new vaccine policy to be challenged based on arguments it is outside the mandate of OSHA, and an impermissible stretch of the U.S. Constitution’s interstate commerce clause. He said opinions of U.S. Supreme Court Justices Clarence Thomas, Amy Coney Barrett, and Neil Gorsuch could encourage a lower court to issue an injunction delaying implementation of the policy. “They are very hostile to the commerce power, and extensive use of the interstate commerce power by the federal government,” Barnes said. “I think there would be a challenge to that, a real challenge.”
- Walter Olson, Senior Fellow, Robert A. Levy Center for Constitutional Studies, Cato Institute: "In short, don’t be surprised when the new Biden vaccine mandate ends up in court. Should it reach the Supreme Court, it will be amid fresh memories of the eviction moratorium debacle, in which a majority of justices clearly signaled that it would be unconstitutional for the Biden administration to renew the expiring Centers for Disease Control and Prevention decree, and the White House went ahead and did so anyway. Slapping that down took less than a month."
- CNN legal analyst Jeffrey Toobin said that it’s unclear if President Joe Biden’s upcoming speech on Thursday that will include announcing a vaccination or testing mandate for employers with more than 100 employees will withstand a court challenge. ... “There is the question, though, of whether the federal government has the legal authority to do this. OSHA [Occupational Safety and Health Administration] supervises employee safety,” he continued. “Whether that authority extends to requiring vaccines for people in companies bigger than 100 employees, you can be sure this is going to be challenged in court. I don’t know the answer to that, but I do know that this is certainly a shot across the bow by the justice department and by the White House, saying, ‘Look, we are sick of asking. We are now telling you to get [vaccinated].”
- John Yoo, Emanuel S. Heller Professor of Law at the University of California, Berkeley, and a visiting fellow at the Hoover Institution: "OSHA has been charged with promulgating the ETS through a 'fast track' procedure provided under the OSH Act. The agency has used this procedure only sparingly in the past, and on those occasions its efforts have not stood up well in court. Before COVID, OSHA had issued only nine Emergency Temporary Standards, of which six were challenged. Of these six, the courts overturned four and partially vacated a fifth. In a successful 1984 challenge to an asbestos ETS, a reviewing court found that OSHA was not justified in taking 'resort to the most dramatic weapon in [its] enforcement arsenal.'"
