Monday, January 17, 2022

In Defense of National Federation of Independent Business v. Department of Labor*

On January 13, the US Supreme Court, by a vote of 6-3, blocked the Biden administration’s vaccine mandate.  The policy took the form of an emergency OSHA (Occupational Safety and Health Administration) standard and would have required all firms with more than 100 workers to mandate vaccination or a testing regime as a condition for remaining employed.  The conservative majority on the court argued that this measure was too far from the original intent of the law to warrant the deference that is normally given to administrative flexibility.

Quite aside from the practical significance of the standard, which I’ll get back to, I think the court was right.  The Occupational Safety and Health Act of 1970, which created the OSHA administrative apparatus, was centered on protecting workers.  It was not intended to be a general purpose vehicle for advancing public health across the entire population.

Why do I think the emergency Covid standard wasn’t primarily about workers?  It did take the form of an employer mandate, after all.  The reason is that workers have been exposed to many risk factors from the virus with far greater impact than the vaccine status of their colleagues, and the Biden administration expressly refused to take any protective action.

Poor ventilation in the workplace is extremely hazardous.  A requirement to be masked in indoor settings and the provision of high quality masks would fit perfectly into the existing regulatory framework regarding personal protective equipment.  Redesigning workplaces to reduce crowding would be a big step, as would regular testing of everyone at employer expense.  Finally, a paid leave policy, while arguably a big step beyond traditional health and safety regulation, would have an immense impact on worker exposure to the virus.

In fact, a wide-ranging emergency standard with many of these provisions was drawn up early last year, but the Biden administration refused to adopt it.  Instead, it issued a standard only for health care workers and left everyone else unprotected.  Not surprisingly, the Supremes did endorse a vaccine mandate for this subset of the labor force: the administrative decision to protect health care workers against multiple Covid risk factors made it more difficult to argue that the additional protection afforded by a vaccine mandate was beyond the reach of the law.

By its own actions, the Biden administration has made it clear it has no intention of protecting workers as workers from avoidable pandemic risks.  Its vaccine mandate was intended to apply to workers as available components of the general public, and insofar as this is true, it is beyond the intended scope of the OSH Act.

This is supported by the practical effect of striking down the standard.  It will presumably lead to less vaccination and testing.  But vaccination status has little effect against infectiousness with the dominance of the Omicron variant, and the testing regime proposed in the standard was too weak to prevent a tsunami of false negatives.  The only consequential outcome will be that there will be a higher percentage of cases that result in hospitalization, ICU usage and death.  That is terrible, but its social cost is at a population level (strain on the medical system, social disruption), not on workers as workers.

I think, despite its limitations, the vaccine-or-test standard would have been on better constitutional footing if the administration had also adopted a broader set of workforce protections for all workers as it had for health care workers.  On a practical level, masking, testing, ventilation and paid leave as general workforce mandates would have had a far larger impact on the course of the pandemic.

In writing this I am not endorsing all the language of the majority, much less the fraction that issued a concurring opinion that would have greatly widened the precedential effect of the decision.  There are some weird attitudes on that bench.  But the central logic strikes me as correct.

*I would have like to italicize the case name in the header, but Blogger doesn't seem to allow me any way to do this.  If someone can point out a workaround, I'd appreciate it.


The Sophist said...

I wonder how your logic applies to the UAW vs Johnson Controls case? There, battery manufacturer was banning fertile females, b/c the lead contamination in the plant was such that if they got pregnant (off-hours, surely) the fetus could be injured. The dangerous working conditions caused injury due to activity performed entirely outside of work.

Also, it's known that masking helps protect, but that goes only so far, the higher the concentration of virus particles in the air, the less-effective masks are. It's true that well-fitted N95 masks are very protective, but getting a good fit is quite tricky, and we all can see vast armies of people wearing ill-fitted masks, everywhere we go.

By contrast, vaccination reduces transmission (the arrow of transmission has two parts: the tail (probability of emitting virus particles) and the head (probability of getting infected). But when you connect two arrows, you can see that if the probability of being infected is lower, then that means that the probability of being the source of someone else's infection is also lower. And in an environment where you can and will get infected (omicron) from a co-worker, it reduces the *severity* of infection, too.

Anonymous said...

osja driven by biden attacked individual liberty.

N95 is not approved for asbestos remediation, virus is smaller.

vaccines do not work particularly on new variants, have not been successfully tested for safety and the only trial there was 15 deceased in the vax arm and 14 in the placebo.

vaccine mandates coincide with mengeles experiments said...


Um, I do not think you are our usual Anonymous. Sorry, but this comment is just insane crackpoettery, especially you last line about mengeles experiments.

There is plenty of evidence that even though the existing vaccines are not all that good at preventing one from catching omicron, they continue to be excellent at keeping people not only out of hospitals, but much more so out of the further stages beyond that: ICU, venitilators, and death.

Your post is just worthless lies and garbage. Get lost, you immoral murderer.

Peter Dorman said...


1. I don't see a connection to Johnson Controls. That decision essentially said that making a job safe only for workers who weren't pregnant (and female) was a form of discrimination.

2. Yes, masks should be of sufficient quality to get the job done. And there's a history in PPE orders where performance or materials are specified.

3. The evidence is not in yet regarding vaccination's effect on the viral transmission rate, but it appears to be minimally significant at best. Of course, even small reductions in R are desirable, especially if combined with other measures. But workers are also potentially exposed to clients and suppliers who may frequent their workplace, and the vaccine mandate was not extended to them. The deeper you dig, the clearer it is that OSHA was adopted as a hoped-for convenient vehicle for a general vaccine mandate, and no consideration was given to worker exposure in traditional OSH terms. And that's what the conservative majority said. Sometimes the right wingers are right.

Anonymous said...

So Osha has no role in protecting workers from covid in chicken processing plants there in the Shenandoah Valley...what happens if there was an even more deadly pandemic?

marcel proust said...

RE: So Osha has no role in protecting workers from covid in chicken processing plants there in the Shenandoah Valley...what happens if there was an even more deadly pandemic? (Anonymous@January 17, 2022 at 8:11 PM).

My understanding of the OP is that the reliance of OSHA's large employer vaccine mandate on the principal of protecting the health and safety of workers is purely a pretext; see paragraphs 3-5 of the OP, i.e., Why do I think the emergency Covid standard wasn’t primarily about workers? ... beyond the reach of the law.

The TL;DR restatement of these paragraphs is that were OSHA serious about protecting workers (as workers) from the incremental threat of the pandemic in the workplace, it would have mandated not only vaccines but a variety of other measures workplace safety. The incremental threat is presumably due to having to work in relatively close quarters with others and/or deal with the public.

Anonymous said...

vaccine mandates coincide...

[ This is a hideous, vile comment that should be removed. ]

Anonymous said...

vaccine mandates coincide...

[ Lying meant to harm; please remove this hideous comment. ]

Anonymous said...

Don't you wish you were in China so the CCP would remove the comment and kill the commenter for you?

Anonymous said...

vaccine mandates coincide with -------- experiments

[ This is a willfully destructive comment. Remarks in the comment are expressly meant to destroy others. Completely, willfully horrid. ]

kevin quinn said...

Peter: I agree that the administration saw this primarily as a way of increasing the vaccination rate generally. So? What alternatives were there consistent with a Senate that would never allow a straight-forward legislative remedy? It didn't work but was worth trying.