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. 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.