The U.S. Supreme Court split the difference this past week, upholding the Biden administration’s power to mandate COVID-19 vaccination in health-care settings but not in other workplaces.
It was the right decision on both counts.
Although President Biden’s goal to increase the vaccination rate in the U.S. is admirable, the means he wanted to use to coerce that into happening was in part an overreach of his power.
Here is what was not an overreach.
It has been well-established that when an entity accepts federal money, there are usually strings attached. When hospitals, nursing homes and clinics agree to accept Medicare and Medicaid reimbursements, which are funded in whole or part by the federal government, they also accept that the federal government can set certain health-care rules, as long as those rules are reasonable. It is more than reasonable to require vaccination for those who treat COVID patients or work with patients who are especially vulnerable to the virus. Such a vaccine mandate, with extremely rare exceptions, not only protects the workers but also the patients who come into contact with these workers.
The attempt, however, to use the Occupational Safety and Health Administration to force employers with at least 100 workers to require vaccination or weekly testing of their employees was an abuse of OSHA’s regulatory powers.
As critics of that strategy pointed out months ago, OSHA is only supposed to intervene on an emergency basis — which the president’s rationale said this was — when “workers are in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards,” as the OSHA law says. COVID-19 can be deadly, but it is a virus, not a toxic substance. And it is a hazard that is circulated in the general population, not one specific to the workplace outside of hospitals and other health-care facilities. OSHA has previously acknowledged this, as shown by the fact that in its 50-year existence, it has never previously mandated vaccinations, even during the most severe flu seasons.
Employers, of course, have the right to mandate vaccinations if they feel this is in the best interest of their workers, their customers and their companies. In fact, a number of U.S. employers have done so for COVID-19, including an estimated third of the nation’s largest companies.
But this is a business decision in which companies individually weigh the pros of reducing the incidence of a disease in their workforce against the cons of workers potentially quitting over a vaccine mandate, and then choose which route to take. The proposed OSHA regulation would have taken this discretion out of the hands of large companies.
The Supreme Court correctly stopped that from happening.
- The Greenwood Commonwealth