Can an OSHA Vaccine Mandate Survive Judicial Review?

Last week, President Biden announced his plan to require private employers with 100 or more workers to mandate COVID vaccinations or require workers to be tested weekly. The mechanism to do this is the Department of Labor’s Occupational Safety and Health Administration (“OSHA”), which is working on an emergency temporary standard (“ETS”). For OSHA to promulgate emergency regulations, it must, according to its website, (1) “determine that workers are in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards” and (2) “that an emergency standard is needed to protect them.” As a matter of non-constitutional litigation, one can question whether COVID-19 is a “substance or agent” such as DDT ( the first of the modern synthetic insecticide). A virus is a living thing–not something we typically describe as a “substance or agent.” We’ve been living with COVID-19 for approximately two years. Can OSHA argue this is a “new hazard”? Does COVID-19 really count as a “grave danger” to workers when every worker in America, without cost to the worker, can get the vaccine today at a local clinic, and thus reduce the chances of contracting the virus and ensure that if contracted the case will be relatively mild?

Moreover, even if we assume for a moment that Congress could impose a vaccination requirement, can OSHA do so? OSHA regulates workplace conduct such as fire prevention standards for welders. With a vaccine mandate, OSHA is regulating conduct that takes place outside of the workplace. Hence, there is an argument that Congress has not delegated to OSHA any power to regulate private activities.

Moving to the Constitution, whence does a congressional power arise to mandate a vaccine? Likely, proponents of federal power will point to the Commerce Clause. Under this clause, Congress may “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” As I have noted in the past, the Commerce Clause has become a catch-all for the exercise of national power over circumstances having little or nothing to do with foreign trade or traffic of goods between states. A vaccine mandate is not a regulation of commerce in any meaningful sense. It is much like the individual mandate to purchase health insurance in the ObamaCare statute. And remember that the Supreme Court held that the insurance mandate “does not regulate existing commercial activity. . . . Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 552 (2012). It is indeed an improper house-that-jack-built argument to claim that a worker falling ill from COVID-19 could slow a business down and thus the aggregate effects as applied to many businesses could impact interstate commerce. In reality, Congress simply has no general police power over infectious diseases so that it can require vaccinations, masks, or other public health initiatives. Such matters are left to the states.

One thing is sure: As soon and OSHA publishes the temporary regulations, litigation will be filed. It will deal with administrative law, non-delegation doctrine, and Congress’s delegated powers. It will be an interesting time to be a court-watcher!