[With] the recent discoveries of physicians and neurologists, engineers and economists, the public can formulate minimum occupational standards below which, demonstrably, work can be prosecuted only at a human deficit. [We] hold that all industrial conditions which fall below such standards should come within the scope of governmental action and controlled in the same way that subnormal sanitary conditions are subject to public regulation and for the same reason – because they threaten the general welfare.Theodore Roosevelt, Presidential Nomination Acceptance Speech at Progressive Party Convention, August 6, 1912
Hospitals at crisis care levels. Children increasingly infected and hospitalized by the new Delta COVID-19 variant. States forcing businesses to assume the risk of employee and customer infections due to masking prohibitions.
President Biden’s vaccination plan attempts to address these new threats from the coronavirus pandemic. Americans are understandably weary of all of the restrictions and frustrated by the failure of our federal and state governments to develop a clear path out of them. The way to examine the necessity of the plan is to ask three questions:
- Is it a good idea?
- Is it legal?
- Is there a better way to do it?
Is it a good idea?
As I said in my post Wasting America’s Moment, the vaccination program is an effective and uniquely American response to the pandemic. Vaccinations significantly reduce the likelihood of hospitalization and eliminate the risk of death not only for recipients, but also potentially for the unvaccinated. They are also our best way to achieve a return to normality in life by allowing business and government to reopen by lessening their liability for workers compensation and customer liability. The toll on our children should also concern us and supports a masking mandate in at least elementary schools.
Is it legal?
The Occupational Safety and Health Act of 1974 grants the Federal government the power to regulate workplace safety to reduce workplace hazards, including illnesses. This law has existed for over three decades and it’s legality has repeatedly been upheld. In particular, section 6 (c)(1) gives the President through the Department of Labor’ Occupational Safety the right to issue Emergency Temporary Standards (ETS) when employees are exposed to “grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger. 29 U.S.C. § 655(c)(1). This cannot be done by mere executive order. The proposed ETS must be reviewed by an advisory committee, drafted and then published in the Federal Register. While it becomes immediately effective at upon publication, it expires after six months if not renewed through the usual notice and comment procedure under the federal Administrative Procedure Act. See this description of the process on OSHA’s website.
Thus, it will be at least a week before any rule or mandate is adopted. Based on the statement from the White House, the rule will allow employees to escape the vaccination requirements through weekly negative COVID-19 testing. Many other issues will need to be addressed and the President has met with business and labor leaders to begin to resolve them. They will also be hashed out by the advisory committee.
Is there a better way do it?
The new emergency standard is unique since it will apply not just to certain industries, but to to almost every type of workplace in the nation. Imposing a mandate of this breadth should be the province of the Congress, not an administrative agency. Acting through legislation instead of an OSHA rulemaking would have allowed the administration to include measures that are outside of the agency’s power, such as providing federal financial support for the small number of employees who may suffer adverse reactions to the vaccine. Even more importantly, it would have forced Republicans and Democrats in Congress to confront the issues, both specious and valid, about our pandemic response. Such a debate would have exposed the weaknesses in both the anti-vaxxer and permanent lockdown camps, which may be why both sides want to avoid it. The eventual result would not fully satisfy either the Dr. Anthony Faucis or Rep. Marjorie Green’s of the world, but it might satisfy the average American trying to run his or her life in a responsible and caring manner.
Nevertheless, we appear to be stuck with the OSHA emergency standard as the only likely method of spurring vaccinations and stopping the surge in the current Delta variant of COVID-19. If opponents want to be helpful, they will start demanding that the Biden Administration set a clear metric for when vaccination and masking mandates will end. What number they pick – whether it is cases, hospitalization rates or death rates – matters less than the simple courageous act of making a decision and setting a goal for the American people to rally around. Only then will we move beyond irresponsible political rhetoric and see the light at the end of this dark tunnel.