In Defense of National Federation of Independent Business v. Department of Labor*
In Defense of National Federation of Independent Business v. Department of Labor*, Econospeak, Peter Dorman
On January 13, the US Supreme Court, by a vote of 6-3, blocked the Biden administration’s vaccine mandate. The policy took the form of an emergency OSHA (Occupational Safety and Health Administration) standard and would have required all firms with more than 100 workers to mandate vaccination or a testing regime as a condition for remaining employed. The conservative majority on the court argued that this measure was too far from the original intent of the law to warrant the deference that is normally given to administrative flexibility.
Quite aside from the practical significance of the standard, which I’ll get back to, I think the court was right. The Occupational Safety and Health Act of 1970, which created the OSHA administrative apparatus, was centered on protecting workers. It was not intended to be a general purpose vehicle for advancing public health across the entire population.
Why do I think the emergency Covid standard wasn’t primarily about workers? It did take the form of an employer mandate, after all. The reason is that workers have been exposed to many risk factors from the virus with far greater impact than the vaccine status of their colleagues, and the Biden administration expressly refused to take any protective action.
Poor ventilation in the workplace is extremely hazardous. A requirement to be masked in indoor settings and the provision of high quality masks would fit perfectly into the existing regulatory framework regarding personal protective equipment. Redesigning workplaces to reduce crowding would be a big step, as would regular testing of everyone at employer expense. It’s best to ask advice from a health and safety consultant UK on what’s the right thing to do for your business. Finally, a paid leave policy, while arguably a big step beyond traditional health and safety regulation, would have an immense impact on worker exposure to the virus.
In fact, a wide-ranging emergency standard with many of these provisions was drawn up early last year, but the Biden administration refused to adopt it. Instead, it issued a standard only for health care workers and left everyone else unprotected. Not surprisingly, the Supremes did endorse a vaccine mandate for this subset of the labor force: the administrative decision to protect health care workers against multiple Covid risk factors made it more difficult to argue that the additional protection afforded by a vaccine mandate was beyond the reach of the law.
By its own actions, the Biden administration has made it clear it has no intention of protecting workers as workers from avoidable pandemic risks. Its vaccine mandate was intended to apply to workers as available components of the general public, and insofar as this is true, it is beyond the intended scope of the OSH Act.
This is supported by the practical effect of striking down the standard. It will presumably lead to less vaccination and testing. But vaccination status has little effect against infectiousness with the dominance of the Omicron variant, and the testing regime proposed in the standard was too weak to prevent a tsunami of false negatives. The only consequential outcome will be that there will be a higher percentage of cases that result in hospitalization, ICU usage and death. That is terrible, but its social cost is at a population level (strain on the medical system, social disruption), not on workers as workers.
I think, despite its limitations, the vaccine-or-test standard would have been on better constitutional footing if the administration had also adopted a broader set of workforce protections for all workers as it had for health care workers. On a practical level, masking, testing, ventilation and paid leave as general workforce mandates would have had a far larger impact on the course of the pandemic.
In writing this I am not endorsing all the language of the majority, much less the fraction that issued a concurring opinion that would have greatly widened the precedential effect of the decision. There are some weird attitudes on that bench. But the central logic strikes me as correct.
if this is trie, then its also true for protecting workers from fire, flooding, storms, among others since. i doubt that the SCOTUS would have been in favor of protecting employees for any reason at all. its just not how they rule
Respectfully disagree. Simply because it is only one protection against workers does not mean it does not protect workers.
i always have my doubts about “central logic”. while rosser makes some valid points about the failure of the administration to protect workers by other means..that might cost employers a little money
it is hard for me to see the logic in “therefore” protecting workers from other workers spreading a lethal virus is an unconstitutional overreach on worker protection laws “because” it “is primarily designed” to protect the general public
my best guess is that the other workers should just refuse to come to work as long as the protections, including masks and vaccination, are not in place.
i also tend to agree that the post vaccination infectiveness of Omicron tends to reduce the “matter of life and death” factor in vaccination… but I do believe in the right of workers to protect themselves, demand workspace protection, from perceived “potential” harm..
For some reason, this post was attributed to Barkley, not me. I’m the guilty party.
Just to clarify, while I’m no Constitution-worshipper — it’s a highly flawed document — I agree with the idea that presidents should not generally be able to rule by decree. To avoid that, it’s important that laws passed for one purpose not be used administratively for a largely different one. Yes, workers like all citizens are protected to some extent by an employer vaccine mandate, but if the goal is to impose a general mandate across society it is illegitimate to use the OSH Act for this purpose. By not taking action (which its own advisors recommended) that would have had a stronger and more focused protective effect on workers, the administration signaled that it was using OSHA for purposes beyond its mission. It’s a judgment call, but on balance I agree with the court’s verdict.
You are officially blamed.
You do not agree with Executive Orders also?
Do you think a SCOTUS largely composed of right wing and religion influenced justices should be able to over rule a congressional act or executive order?
All of this comes during a fast moving epidemic(s). And we are stymied by a Congress which will not act due to political interests and a make believe interest in individual rights at the expense of others.
Will Manchin agree with paid leave for workers when he opposes family leave which mostly benefits families.