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Will the Supreme Court let OSHA enforce Biden’s vaccine mandate?

Corporate deregulation has long curtailed OSHA’s power to safeguard workers.

President Biden speaks about coronavirus vaccinations in Elk Grove Village, Ill., on Oct. 7. (Susan Walsh/AP)

On Jan. 7, the U.S. Supreme Court will review the legality of two emergency temporary standards from the Occupational Safety and Health Administration (OSHA) intended to control the workplace transmission of covid-19. The first standard, withdrawn this past December, combined several measures to protect health-care workers including mask mandates, routine testing, case reporting and ventilation. The second, informally called the Biden vaccine mandate, would compel private employers with 100 or more employees to require on-site personnel to receive the coronavirus vaccine or, alternatively, to wear masks and to assent to weekly coronavirus tests. These orders have provoked substantial opposition from the business community and Republican state officials, who accuse the Biden administration and OSHA of using the emergency temporary standard process to overstep the regulatory authority of the federal government and undermine the economic welfare of countless businesses.

The ongoing social and legal controversy over the vaccine mandate demonstrates how the reticence of agencies like OSHA to exercise their authority has diminished their ability to safeguard our society. Ever since President Richard M. Nixon signed the Occupational Safety and Health Act of 1970 into law, OSHA has confronted resistance from advocates of free enterprise. This pressure steadily intensified over the course of the Ford, Carter and Reagan administrations and discouraged OSHA from passing new emergency standards. This policy of regulatory restraint unfortunately has not made the task of defending the vaccine mandate any easier.

The purpose of the law was straightforward: to reduce the “lost production, wage loss, medical expenses, and disability compensation payments” resulting from the “injuries and illnesses arising out of work situations.” The final law reflected years of painful compromises between labor and industry and tried to consolidate the dense network of voluntary standards and state and local laws governing occupational safety. Free-market critics quickly singled out OSHA as overburdening American companies with red tape and heavy-handed enforcement. Over its first two decades, the agency strained to meet relentless demands for deregulation, agreeing to incorporate cost-benefit analyses into its procedures, to accommodate small businesses with various exemptions and to cut down on required paperwork. The Reagan administration rejected these concessions and fought to close OSHA entirely as part of its broader campaign against bureaucracy.

This sustained political onslaught has caused OSHA to rely heavily on nonbinding guidelines and voluntary compliance with federal regulations to keep workers safe. The agency usually avoids controversy and emphasizes good-faith collaboration between employers and government officials over penalizing corporate misconduct. Although this approach enables OSHA to perform its regular duties without adequate staff, resources or public support, implicitly trusting businesses to protect their employees from covid has produced some disturbing results.

Decades of appeasing hostile corporations and conservative lawmakers have paradoxically made it far harder for OSHA to take decisive action under extraordinary circumstances. Before the coronavirus pandemic, the agency had not issued any emergency temporary standard (ETS) since 1983, when it dramatically lowered the existing permissible exposure level (PEL) for asbestos. Acting under Section 655 of the OSH Act, OSHA chief Thorne Auchter used the ETS procedure to safeguard workers against the “grave danger” of workplace asbestos until OSHA established new permanent requirements. The backlash from asbestos manufacturers came immediately. After calling on OSHA to delay the order, the Asbestos Information Association (AIA) petitioned the Fifth Circuit Court of Appeals to overturn the standard because Auchter did not compellingly explain its timing or account for its adverse impact on the market for asbestos products.

Like many of the earlier emergency standards implemented during the 1970s, the asbestos ETS did not withstand judicial review. The Fifth Circuit sharply questioned the reliability of the risk assessment behind the regulation and the need for OSHA to deploy the “most dramatic weapon in its enforcement arsenal.” These legal setbacks led the agency to all but abdicate its authority to set emergency standards, badly damaging their perceived legitimacy.

The historical reluctance of OSHA to regulate infectious diseases poses additional problems for its vaccine mandate. With the partial exceptions of its standards for bloodborne pathogens and personal protective equipment (PPE), OSHA has no specific provisions for the control of respiratory illnesses. From 2000 to 2020, OSHA warned the country about severe acute respiratory syndrome (SARS-CoV), avian flu (H5N1), swine flu (H1N1) and Middle East respiratory syndrome (MERS-CoV) but instructed employers and employees to follow the guidance of the Centers for Disease Control and Prevention (CDC). Only swine flu reached epidemic proportions within North America, and the success of the H1N1 vaccine meant the CDC and OSHA never had to enact measures beyond travel restrictions and brief closures of local schools and child-care facilities.

This years-long pattern of deferring to the CDC on policies related to infectious diseases has had serious consequences during the coronavirus pandemic. Since March 2020, the CDC has consistently declined to mandate lockdowns, masks, testing or vaccination and has drawn extensive criticism for its inconsistent advice about proper PPE and quarantine periods. Despite abundant evidence of the workplace transmission of covid-19 and the relative severity of its symptoms, OSHA remained on the sidelines of these debates until mid-2021.

Based on its merits, the vaccine mandate should stand. According to OSHA, the emergency standard may conservatively prevent 6,500 “worker” deaths and 250,000 hospitalizations over the next six months. As the Sixth Circuit Court of Appeals ruled on Dec. 17, the ETS also falls squarely within the scope of the OSH Act, limits a “grave” hazard and qualifies as a “necessary” means to slow the accelerating spread of covid-19. The written rationale accompanying the ETS, moreover, clarifies why OSHA chose to intervene now. The emergence of the more communicable delta and omicron variants, the systemic failure of voluntary measures to control the pandemic, and low vaccination rates within crowded workplaces have exacerbated the present catastrophe.

Political decisions, however, seldom depend on determinations of scientific and legal facts alone. Without solid precedent for its recent emergency standards, OSHA has left itself exposed to bad-faith accusations of federal overreach. The initial Fifth Circuit decision against OSHA, for example, criticized the vaccine mandate for its supposed reliance on an “old statute employed in a novel manner.” The dissent from the Sixth Circuit case reinstating the ETS likewise insisted, “OSHA has ventured into entirely new territory.” Conservative judges have joined Republican officials and large portions of the business community to question every aspect of the vaccine mandate, including the authority of OSHA to regulate viruses at all, the statutory boundaries of the workplace, and the relative efficacy of vaccination and other public health strategies.

Emergency standards exist for unprecedented moments. As the Fifth Circuit affirmed four decades ago, the failure of federal agencies to respond promptly to emergencies neither does nor should preclude them from doing so later: “To hold that because OSHA did not act previously it cannot do so now only compounds the consequences.” The same logic applies to the covid crisis. After two years, OSHA has finally reconsidered the deadly policy of delegating responsibility for the pandemic to employers, individuals and the states. For all of our sakes, the Supreme Court must let OSHA carry out its mission to protect American workers.