Can the federal OSHA agency order employers to get their employees vaccinated for the coronavirus — or have them tested weekly? That is what it has done to employers with 100 or more employees. One federal appeals court temporarily blocked this mandate, but another then upheld it in a 2-to-1 vote.
The deputy editorial page editor for the Washington Post is a staunch liberal. She is worried that the Supreme Court may strike down President Biden’s attempt to create a nationwide vaccine mandate. But that liberal, Ruth Marcus, admits that OSHA’s order is legally quite vulnerable. As she admits, OSHA’s order raises the genuine question,
Can federal agencies impose mandates using laws that were hardly designed with a global health crisis in mind? Or must regulators wait for that authority to be made clear by Congress, which has proved itself increasingly incapable of governing?
She admits that that “these mandates represent aggressive, even unprecedented, uses of federal regulatory authority.” That is to say, arguably beyond OSHA’s authority. Marcus takes note of the Supreme Court’s
ruling earlier this year that the federal Centers for Disease Control and Prevention exceeded its authority in issuing a moratorium on evictions for those in areas with high covid‐19 spread.
“It would be one thing if Congress had specifically authorized the action that the CDC has taken,” the court said in an unsigned opinion. “But that has not happened. Instead, the CDC has imposed a nationwide moratorium on evictions in reliance on a decades‐old statute that authorizes it to implement measures like fumigation and pest extermination.”
Marcus touts the fact that the Occupational Safety and Health Act “allows OSHA to issue emergency rules when it deems them ‘necessary’ to protect employees from ‘grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.’” She argues, “It doesn’t seem like much of a textual stretch, if a stretch at all, to consider the coronavirus an ‘agent’ that poses ‘grave danger’ to workers.” But she recognizes that “OSHA has never before imposed such a broad, nationwide and non‐industry‐specific requirement.”
Marcus is worried about a Court that, she argues, “is itching to rein in administrative agencies and is disinclined — to put it mildly — to read agencies’ authorities broadly.” But that is precisely what the Constitution commands. As the Supreme Court explained in 1995, “The Constitution creates a Federal Government of enumerated powers.”
OSHA’s vaccination mandate only covers employers with 100 or more employees. Smaller private-sector employers often aren’t covered by the OSHA mandate. Small employers were only covered, if at all, by other agencies’ mandates that are currently blocked by judges in one or another region of the country, such as the mandate covering healthcare providers regardless of size, or government contractors regardless of their size (or by state or municipal mandates, in a few states or cities). As Phil Kerpen notes, Biden’s vaccine mandates for healthcare workers and government contractors were recently enjoined nationally, so if a healthcare provider or government contractor doesn’t have 100 or more employees, it may not be subject to any vaccine mandate.