In a rebuke of the Biden administration, the Fifth Circuit Court of Appeals reaffirmed its stay of the Occupational Safety and Health Administration’s (OSHA) workplace Covid-19 vaccine mandate. The decision highlights the contrast between the Biden administration’s dangerously expansive vision of federal power and the Trump administration’s more traditional understanding of constitutional limits.
The Constitution reserves general “police powers” to the states, which have traditionally exercised authority over public health matters, including vaccination. The nonpartisan Congressional Research Service reported in April that federal authority over health care is more constrained, limited to the powers enumerated in the Constitution, and that no federal statute expressly authorizes vaccination requirements on the general population.
The Biden administration initially said that the federal government could not and would not impose a vaccine mandate. Yet when the president declared that his patience with the unvaccinated was “wearing thin,” the administration devised—in the words of chief of staff Ron Klain—a “work-around.” OSHA issued an emergency temporary standard (ETS)—a rarely used rulemaking shortcut available when “necessary” to protect against a “grave danger” in the workplace. The standard required businesses with 100 or more employees to ensure that workers either get vaccinated or undergo weekly testing.
As the Fifth Circuit noted, this was not the first time OSHA had considered using an ETS during the pandemic. In the spring of 2020, OSHA denied a petition from labor organizations to issue an ETS for Covid-19. The D.C. Circuit Court of Appeals agreed with OSHA that an ETS was “not necessary” to “protect working people from occupational exposure to infectious disease, including COVID-19.”
OSHA had asserted that a nationwide mandate “would be superfluous at best and could be counterproductive to ongoing state, local, and private efforts.” It reasoned that “[a]dequate safeguards for workers could differ substantially based on geographic location, as the pandemic has had dramatically different impacts on different parts of the country.” It also recognized that different standards would be needed in different industries.
In contrast, the Fifth Circuit found that OSHA’s new ETS is a “one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly ‘grave danger’ the Mandate purports to address.” The “overinclusive” mandate applies to all industries, regardless of whether employees can easily keep apart or must work shoulder to shoulder, as in meatpacking. And the mandate applies equally to all workers, despite their varying degrees of susceptibility. The Court observed that “a 28-year-old trucker spending the bulk of his workday in the solitude of his cab is simply less vulnerable to COVID-19 than a 62-year-old prison janitor.” In addition, the mandate makes no exception for the millions of unvaccinated workers who have natural immunity after recovery from Covid-19, which the CDC acknowledges is highly protective.
A general mandate seems unnecessary to protect most workers, for whom Covid-19 is generally a mild disease. The infection fatality rate for prime-age workers ranges from 0.01 percent for 25-year-olds to 0.4 percent for 55-year-olds. In fact, the danger of exposure to Covid-19 is far lower now, given the many new vaccines and therapeutics available, than when OSHA rejected the ETS last year. Currently 71 percent of those 18 or older are fully vaccinated. Another 11 percent are partially vaccinated. If the mandate takes full effect on January 4, 2022, as planned, the figures will be even higher.
At the same time, the Fifth Circuit noted, the new ETS mandate is “underinclusive.” It arbitrarily protects workers at businesses with 100 or more employees. Most businesses have fewer than 100 employees, and these smaller companies employ more than a third of U.S. workers. Covid-19 poses the same danger to workers at small firms as at larger ones. Why isn’t a mandate necessary to protect them?
While the federal government has a role to play in promulgating scientific information, state and local governments, along with individual businesses, are in the best position to assess threats that vary from location to location and determine the optimal means of mitigating them. That’s why the Constitution makes states chiefly responsible for “health laws of every description,” as the Supreme Court declared 200 years ago. This is a lesson that the Biden administration, in its zeal for grandiose government solutions, routinely disregards.
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