The Vaccine, the Workplace, and the Administrative State

By Maria McCabe.

Here we are, approaching the third year of a global pandemic. COVID has killed over 915,000 Americans, left others with “long COVID,” and has had devastating effects on student learning outcomes. We likely have many months ahead of masking, quarantining, and testing and we—as a nation—cannot seem to decide on the role of government in addressing this once-in-a-century crisis.

Since the COVID-19 vaccines were rolled out last year, data has shown the vaccines are safe and effective at preventing serious illness from COVID-19. Yet only approximately 68% of eligible Americans and 73.5% of eligible Arizonans are fully vaccinated. In an attempt to increase the number of vaccinated American workers, the Biden administration announced a vaccine mandate last September that would compel employers with at least 100 employees to require vaccination or weekly testing plus masking, with some exceptions. The federal government released more details of the rule in November, and the mandate was to go into effect on January 4. However, the Supreme Court recently struck a blow to this mandate in National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration.

The Decision

At the outset, it is important to understand what the Court decided. The Supreme Court does not decide cases based on what it thinks is good policy—or at least, it is not supposed to—so this decision is not about the wisdom of a vaccine mandate. Nor was the Court addressing the general constitutionality of a vaccine mandate.

The Court examined whether there should be a stay, which would block the implementation of the mandate while it was litigated in full. To make this determination, the Court asked whether the lawsuit was likely to succeed, which was a question of administrative law and statutory interpretation. Did Congress give the federal agency the power to issue a mandate like this?

The Language of the Law

Congress passed the Occupational Safety and Health Act in 1970 to “assure safe and healthful working conditions for working men and women.” To do so, it gave the Occupational Safety and Health Administration (OSHA) the power to issue “mandatory occupational safety and health standards” that are “reasonably necessary or appropriate to provide safe or healthful employment.” In emergency situations, OSHA can issue regulations that take effect immediately when it finds “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards” and that the regulation is necessary. OSHA mandates a range of protection for workers in different worksites, for example by preventing worker exposure to dangerous chemicals, or by requiring guards on dangerous machines.

At oral argument, the federal government argued that the vaccine or mask-and-test mandate “lies in the heartland of OSHA’s regulatory authority,” given the threat that COVID-19 represents to workers. However, the majority of justices disagreed, finding that COVID is not an “occupational” hazard. Rather, it is a universal public health risk that exists in the world at large, and Congress “has not given [OSHA] the power to regulate public health more broadly.” Although the Court expressed openness to “targeted regulations” in cases where COVID-19 “poses a special danger” given “the particular features of an employee’s job or workplace,” this mandate was too broad. Also, vaccination is different because it “cannot be undone at the end of the workday.”

Justices Breyer, Sotomayor, and Kagan dissented, arguing that COVID-19 is a workplace hazard, since “[i]t spreads by person-to-person contact in confined indoor spaces,” i.e., most workplaces. As a result, OSHA clearly has the power to issue the rule under the statute’s language. The virus is a “new hazard” and “physically harmful” agent, it poses a “grave danger,” and the rule is “necessary” because masking and vaccination reduce the risk of transmission.

The Major Questions Doctrine

While it is tempting to attribute the Court’s 6-3 decision to partisan attitudes about COVID precautions, this case also takes place in the context of a larger dispute over the role of the administrative state. The dissent argued that the Court should have reviewed the mandate with more deference to the agency’s interpretation; this is because an agency like OSHA employs scores of scientists and experts, who support regulations with significant evidence and data, while the Court lacks any scientific expertise. The majority, however, applied a more exacting standard of review, because “[w]e expect Congress to speak clearly when authorizing an agency to exercise power of vast economic and political significance.” Justice Gorsuch further defended this “major questions” doctrine in his concurrence: “If administrative agencies seek to regulate the daily lives and liberties of millions of Americans, the doctrine says, they must at least be able to trace that power to a clear grant of authority for Congress.”

Some commentators have linked this decision to a broader conservative project aimed at reining in the power of the administrative state. Broad swathes of modern life are governed by regulations made by federal agencies, under the authority delegated to them by Congress. Justice Gorsuch’s concurrence, in particular, hints at a desire to require Congress to write laws with more specificity, rather than giving the executive branch the flexibility to respond to new crises.

The Outcome

The mandate is essentially dead. The Biden administration withdrew the mandate, in light of the Court’s clear message that the administration would lose the case. However, the Court left the administration’s vaccine mandate for health care providers, which was issued under different statutory authority, in place. Absent federal regulation, some employers have kept their vaccine mandates, while others rescinded them. Meanwhile, some states have passed laws limiting the ability of companies to implement vaccine mandates. In Arizona, Governor Ducey has issued multiple executive orders banning vaccine mandates for state and municipal employees, a federal judge in Phoenix recently joined other federal courts in blocking the Biden administration’s vaccine mandate for federal contractors, and the Arizona Corporation Commission barred state-regulated utilities from enforcing vaccine mandates. Finally, a bill currently pending in the Arizona House of Representatives would compensate employees who are fired for refusing to get vaccinated.

The Court may not view COVID-19 as an occupational hazard, but the pandemic has reshaped the workplace. Some have been able to work from home—just as the Supreme Court Justices did from March 2020 to September 2021—and many workers want remote or hybrid options in the future. But others have been working in person since March 2020 because their jobs require it, putting them at higher risk of contracting COVID. Moreover, these essential and frontline workers are more likely to be people of color, women, and low income, and they are less likely to have access to paid sick time. As a result, these groups have faced higher risks of contracting COVID. Outside of work, many of us can determine what COVID precautions we want to take: whether we want to fly on an airplane, dine indoors, or socialize with unvaccinated friends. But in-person workers—from home health care workers to baristas to meatpacking workers—have no choice but to work side-by-side with coworkers who may or may not be vaccinated. Regardless of the Court’s reasoning, the practical effect of the Court’s ruling is to limit the ability of OSHA to use its Congressionally delegated power to “assure safe and healthful working conditions” for in-person workers.

"Syringe and Vaccine" by NIAID is licensed under CC BY 2.0

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By Maria McCabe

J.D. Candidate 2023

Maria McCabe is a 2L Staff Writer interested in the intersection of gender, immigration, and employment law. She is a graduate of Northeastern University, with a degree in Political Science and International Affairs, and an AmeriCorps alumna. Maria is also on the board of the ASU student chapters of the American Constitution Society and International Law Society. When she is not studying, she enjoys skiing, traveling, and anything made with peanut butter.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.