For starters, this is not a “vaccine mandate.” It is a requirement that employees either get vaccinated or subject themselves to weekly testing. While the preferable route is for tens of millions of American workers to get vaccinated, not a single person will be required to get a shot under this directive. They simply have to agree to testing.
Second, the mock horror that greeted the announcement suggested that critics lack a fundamental understanding of key federal laws. First, Section 361 of the Public Health Service Act allows the Health and Human Services Department or the Centers for Disease Control and Prevention to make necessary measures “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” This might certainly entail vaccination requirements for anyone but Biden is merely requiring large employers present the alternative of testing or vaccinations.
Second, the Occupational Safety and Health Act has been in effect since 1970. It mandates all sorts of things in workplaces — hard hats, personal protective equipment, steel-toed shoes, ear plugs and goggles, to name a few. In June OSHA issued an Emergency Temporary Standard for health-care workers that required measures to suppress transmission including “patient screening and management; Standard and Transmission-Based Precautions; personal protective equipment (PPE), including facemasks or respirators; controls for aerosol-generating procedures; physical distancing of at least six feet, when feasible; physical barriers; cleaning and disinfection; ventilation; health screening and medical management; training; anti-retaliation; recordkeeping; and reporting.”
Roderick Hills, a New York University Law professor, told the legal website Law & Crime: “The federal government has regulated workplace safety since 1970, when [President Richard M.] Nixon signed the Occupational Safety and Health Act into law. The businesses covered by the Act are all regarded as either ‘in’ or ‘affecting’ interstate commerce and therefore within Congress’ power to regulate under Article I, section 8, clause 3 of the Constitution (the so-called ‘commerce clause’).”
Moreover, OSHA regulates hazards that do not appear only or even primarily in workplaces. Everything from tuberculosis and hepatitis B protocols to bloodborne pathogens to Ebola falls within the so-called general duty clause, which states that "[e]ach employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
To be certain, every imaginable legal theory, including claims that OSHA itself is unconstitutional, will be raised. We already know from the 60 or so failed lawsuits stemming from the 2020 election that frivolous claims are part of the MAGA playbook. However, right-wing pundits and think tankers who simply do not like the law shouldn’t bamboozle the public with assertions that Biden’s actions are a tyrannical overreach of power.
It might be news to the right-wing echo chamber, but the federal government’s power to regulate the workplace is vast; they have an entire Cabinet department that does nothing else.