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President Biden visited Brookland Middle School in Washington, DC, to speak about coronavirus protections on September 10. | Saul Loeb/AFP via Getty Images

They probably are, but that doesn’t mean that a right-wing judiciary will uphold them.

On Thursday, President Joe Biden voiced the frustrations that millions of vaccinated Americans have expressed to each other for months. The US economy is still being squeezed, and many Americans’ lives are in danger, because there is a “pandemic of the unvaccinated” caused by “nearly 80 million Americans who have failed to get the shot.”

He also announced several new policies intended to encourage vaccination. The most potent is a rule requiring large employers to protect their workers from unvaccinated colleagues by requiring either vaccination or weekly testing.

“The Department of Labor is developing an emergency rule to require all employers with 100 or more employees, that together employ over 80 million workers, to ensure their workforces are fully vaccinated or show a negative test at least once a week,” Biden revealed. Additionally, the Labor Department will “require employers with 100 or more workers to give those workers paid time off to get vaccinated.”

That immediately raised the question of whether the Labor Department can actually do that. In response to Biden’s announcement, several GOP governors immediately promised litigation, even though it is far from clear why a state, not a private employer, would be the proper plaintiff to bring such a lawsuit.

Let’s get one thing out of the way first: Vaccine mandates are not unconstitutional. The Supreme Court upheld a local health board’s decision to mandate smallpox vaccinations in Jacobson v. Massachusetts (1905). And states routinely require nearly all school-age children to receive a long list of vaccines.

In Georgia, for example, nearly all children must be vaccinated against many diseases, including polio, hepatitis B, measles, mumps, rubella, varicella, tetanus, diphtheria, pertussis, meningitis, and septicemia.

But just because the Constitution permits the government to require vaccines does not necessarily mean that the Labor Department may, as Biden says it will, issue a binding rule requiring large employers to encourage vaccination. The Labor Department may only act pursuant to an act of Congress. So unless Congress passes a new law, the department must rely on an existing statute if it wishes to regulate employers.

There is a strong argument, however, that the Occupational Safety and Health Act of 1970 (OSH) permits the Labor Department to act. Among other things, that law permits the secretary of labor to issue an “emergency temporary standard” regarding workplace health or safety if they determine that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful,” and that such a standard is “necessary to protect employees from such danger.”

The delta variant of the SARS-CoV-2 virus is a substance or agent that is physically harmful. Still, employers who object to the Labor Department’s new rules might claim that Covid-19 does not present a sufficiently “grave danger” to justify implementing an emergency standard. Or they might argue that the particular rule announced by President Biden is not “necessary” to protect workers from Covid-19.

Under existing case law, the Biden administration likely could overcome these objections. But they will also have to present their case to a judiciary that is dominated by Republican appointees and that has handed down several decisions undercutting public health rules intended to prevent the spread of Covid-19. So there’s no guarantee these courts will follow existing law.

The bottom line is that the fate of the new vaccination rules is uncertain. There is fairly little case law interpreting the Labor Department’s power to issue emergency standards, and there is no guarantee that an increasingly conservative judiciary will treat existing case law as binding.

But if the courts eventually strike down the Labor Department’s rule, it matters a great deal when they do so. If the rule is in effect for several months, even if the Supreme Court eventually decides to repeal it, many employers are likely to comply with it voluntarily — and millions of Americans could be vaccinated while the rule is in effect.

When can the Labor Department issue an “emergency temporary standard”?

The Occupational Safety and Health Act gives the Labor Department very broad authority to protect workers’ health and safety. Under the law, the secretary may issue binding regulations “to serve the objectives” of the statute. It enumerates several purposes that it is intended to achieve, including “authorizing the Secretary of Labor to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce,” and “providing medical criteria which will assure insofar as practicable that no employee will suffer diminished health, functional capacity, or life expectancy as a result of his work experience.”

Yet while the law gives the department a great deal of power to issue regulations, it normally may only do so in a lumbering, protracted process that typically takes years to complete. The Occupational Safety and Health Administration (OSHA), an agency within the Labor Department, often spends months or years meeting with stakeholders within an industry before proposing a new rule. The proposed rule must be announced to the public to give people who may be affected by the rule an opportunity to comment. Then OSHA must take these comments into account while devising a final rule.

According to the nonpartisan Congressional Research Service, the whole process, on average, takes seven years and nine months — meaning that, if the Biden administration started that process now in order to push out a vaccination rule, President Biden could be out of office by the time that rule is finalized.

The law also has a rarely invoked provision permitting OSHA to bypass this long process and issue an emergency temporary standard, which may remain in place for up to six months. Although this provision has not been used very often in the past, the Biden administration did use it last June to implement new, Covid-related rules governing health care employers.

Litigation challenging the Biden administration’s new vaccination rules is likely to focus on whether the Covid-19 pandemic meets the legal standard required to issue such an emergency rule — including whether Covid-19 presents a “grave danger” and whether the administration’s proposed rule is “necessary” to protect workers from that danger.

 Kent Nishimura/Los Angeles Times via Getty Images
On Thursday, President Biden announced several new policies to encourage vaccination including requiring large employers to protect their workers from unvaccinated colleagues by requiring either vaccination or weekly testing.

Prior to the pandemic, the last time OSHA attempted to issue an emergency standard was 1983, when the Reagan administration tried to reduce the amount of asbestos workers could be exposed to by 75 percent. That rule was eventually struck down by the United States Court of Appeals for the Fifth Circuit, although on fairly narrow grounds, and in an opinion that suggests OSHA has a fair amount of discretion to decide when an emergency standard is warranted.

Significantly, the Fifth Circuit’s opinion in Asbestos Information Association v. OSHA (1984) holds that courts should not second-guess the agency’s determination that a particular health hazard presents a “grave danger” to workers. “Gravity of danger is a policy decision committed to OSHA, not to the courts,” according to the Fifth Circuit.

Moreover, even if the courts were to make such judgments, the Fifth Circuit’s opinion suggests that health hazards that are far less threatening than Covid-19 can still be a “grave danger.” According to OSHA, the Reagan administration rule at issue in Asbestos Information Association was expected to save “eighty lives out of an estimated worker population of 375,399” during the six-month period that it would have been in effect — far fewer than the hundreds of thousands of lives lost to Covid-19.

And yet, the Fifth Circuit explained that “the Secretary determined that eighty lives at risk is a grave danger. We are not prepared to say it is not.”

While Asbestos Information Association has some good news for the Biden administration, the court’s opinion also suggests that OSHA may carry a difficult burden of proof when it claims that an emergency standard is “necessary” to protect workers.

The Fifth Circuit did not rule on whether the Reagan-era asbestos standards were “necessary,” but it did strike down those standards because OSHA failed to consider alternative rules, such as requiring employers to provide respirators to their workers that could filter out asbestos.

Under the Fifth Circuit’s opinion, OSHA could have potentially reissued the same emergency asbestos standards if it had explained why alternatives such as respirators are inadequate. But OSHA had to actually do that work.

So are the courts likely to uphold the Biden administration’s vaccination rules?

One piece of good news for the Biden administration is that anyone challenging an emergency temporary standard must file a petition in a United States Court of Appeals, not in the federal district courts that normally try cases prior to appeals. That will prevent these challengers from seeking out one of the several district judges with well-earned reputations as conservative ideologues who can often be relied on to block Democratic policies.

The Fifth Circuit’s opinion in Asbestos Information Association suggests one way that judges acting in bad faith might sabotage the new vaccine rules. That opinion implies that OSHA must consider all reasonable alternatives to a new policy, and explain why those alternatives are inadequate. (We won’t know why the Biden administration believes that alternatives such as mask requirements are inadequate until OSHA formally issues the document implementing the new policy.)

But a hostile panel might also force OSHA to consider unreasonable alternatives, and then send the vaccination rule back to the drawing board because OSHA failed to explain why it couldn’t require unvaccinated employees to wear hazmat suits or to seal themselves up in a hermetic bubble.

The Supreme Court’s conservative majority is also increasingly hostile to federal statutes that grant broad regulatory authority to federal agencies, and may view a challenge to new vaccine rules as a good opportunity to diminish OSHA’s authority.

Last month, in Alabama Association of Realtors v. HHS, the Supreme Court struck down a moratorium on many evictions promulgated by the Centers for Disease Control and Prevention (CDC). The CDC claimed that such a moratorium is justified because it would prevent the spread of Covid-19 by people who lost their homes and had to seek shelter with friends or in homeless shelters. And the CDC relied on a broadly worded statute permitting it to “make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases.”

Nevertheless, a majority of the justices construed this statute narrowly to prohibit the eviction moratorium.

There are some important distinctions between the statute at issue in Alabama Association of Realtors and the text of OSH. The statute at issue in the eviction moratorium case contained some language that, at least according to a majority of the justices, should be read to limit the CDC’s authority to actions to “inspection, fumigation, disinfection, sanitation, pest extermination, [and] destruction of animals or articles.” OSH does not contain similar language.

That said, a major thrust of the Court’s opinion in Alabama Association of Realtors was that the CDC claimed a “breathtaking amount of authority,” and that no previous CDC regulation issued under the same statutory provision “has even begun to approach the size or scope of the eviction moratorium.”

These are not legal judgments so much as value judgments. A majority of the Supreme Court was more uncomfortable with a federal agency having the power to halt evictions en masse than it was with the possibility that people who lost their homes might spread a deadly disease. It’s not hard to imagine the same justices applying a similar value judgment to the Biden administration’s vaccine rules.

All of which is a long way of saying that the fate of those rules is likely to turn less on what OSH (or any other federal law) actually says, and more on whether at least five members of the Supreme Court agree with Biden’s policy.

The man elected to govern the United States has come up with a plan to fight Covid-19. It’s now up to a panel of unelected justices to tell us if he can implement it.

Author: Ian Millhiser

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