Five Tentative Thoughts About The OSHA Employer Vaccine Mandate

There will be lots of litigation, and some judge, somewhere, will find the mandate unlawful.

|

Yesterday, the Biden Administration announced that would require employers with more than 100 employees to mandate vaccination or testing. Specifically, the Department of Labor and the Occupational Safety and Health Administration will issue the rule. We do not yet have a proposed rule. Here, I will offer five tentative thoughts.

First, there will be litigation. Lots of litigation. This will be the rule that launched a thousand suits. Employers and employees across the country who object to the mandate will have standing to sue. They will bring suits in many district courts. Some judge, somewhere, will find this policy unlawful in some regard. And one of these judges may issue a nationwide injunction, or "vacate" the rule. And some court of appeals, somewhere, may agree. [Update: Under 29 U.S.C. 655(f), a pre-enforcement challenge may begin in the court of appeals]. The Biden Administration no doubt recognizes that the courts can block this policy. But this risk was worth taking. Most employers will not challenge the policy. And many companies will be happy this policy provides cover for mandating vaccines. In the interim, millions of people will get vaccinated. But this mandate could create unanticipated ripples in the workplace. Many people will simply choose to be fired, rather than get the jab. Others will submit fraudulent documents, which will lead to discipline. Unemployment numbers may actually trickle up because of this executive action. People do not respond well to mandates. Indeed, I fear this federal diktat will harden the hearts, so to speak, and exacerbate vaccine hesitancy.

Second, the rule will likely be issued very soon, before any public comment period. OSHA will likely issue an Emergency Temporary Standard (ETS). OSHA used this approach to impose a vaccine mandate on healthcare workers in June 2021. The ETS became effective a few days after it appeared in the federal register. According to CRS, the last time OSHA tried to use an ETS was for a 1981 asbestos rule. And that rule was stayed. Section 6(c)(1) of the OSHA Act allows the Secretary to issue an ETS if he determines "that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards." Is COVID-19 a "hazard," as this term has been traditionally understood, in the same sense as a dangerous chemical? Are there other provisions of OSHA that govern exposure to diseases? If so, Section 6(c)(1) may be read to be limited to chemical hazards, rather than airborne illnesses. I need to give this issue some more thought.

Third, does OSHA have the delegated authority to impose this requirement? I have not yet had time to study the statutory framework in any depth. For now, I will raise a broad question based on the major question doctrine and the non-delegation doctrine. As far as I understand, OSHA has traditionally regulated conduct in the workplace. For example, employees have to wear masks and the like. But this regulation governs conduct outside the workplace. More precisely, it requires employees to inject a substance in their body. Say what you will about Jacobson (my article is still going through the law review submission process), but there is some "bodily autonomy" interest at play here, that is not at play with a mask mandate. Did Congress really hide that elephantine-syringe in the OSHA "general duty" clause? Perhaps the better reading of the statute is that Congress did not delegate this authority.

Fourth, the Supreme Court's recent eviction moratorium case makes the Biden Administration's job much tougher. Courts are often skeptical when agencies attempt to use a very old statute to enact a sweeping broad new regulation. The Supreme Court reflected this concern in the eviction case. The majority favorably cited UARG and Brown & Williamson:

Even if the text were ambiguous, the sheer scope of the CDC's claimed authority under §361(a) would counsel against the Government's interpretation. We expect Congress to speak clearly when authorizing an agency to exercise powers of "vast 'economic and political significance.'" Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 160 (2000)). That is exactly the kind of power that the CDC claims here. At least 80% of the country, including between 6 and 17 million tenants at risk of eviction, falls within the moratorium. 

I can see this precise authority being used to prune the OSHA vaccine mandate. Using OSHA to mandate vaccines for 100 million-plus employees is a stunning assertion of power. The decision to push the eviction case back up to the Supreme Court makes it harder to defend the OSHA vaccine mandate. Perhaps OSHA can mandate testing, which does not implicate bodily autonomy, but cannot mandate vaccines.

Fifth, there will invariably be constitutional challenges. I do not think Congress could directly require people to get vaccinated. But the OSHA rule accomplishes that same task, indirectly, through regulations of private employers. Is this regulation within Congress's commerce powers? To answer that question, we have to define the relevant activity. Does this rule regulate conduct in the workplace? If so, that activity would be economic in nature. Or does this rule regulate a person's decision not to get vaccinated? The latter decision sounds an awful lot like a decision not to purchase health insurance. Remember, in NFIB v. Sebelius the "broccoli" horrible involved buying broccoli, not forcing people to eat broccoli. We were told the latter mandate would implicate the Due Process Clause. I would wager that forcing someone to eat a vegetable is less intrusive than forcing someone to receive a vaccine. I hope the ACLU agrees.

Even if this authority is within Congress's commerce powers, it may go beyond Congress's Necessary and Proper powers. In other words, it is not a proper use of federal power to require 100 million Americans to become vaccinated. The federal government is not simply banning guns in school zones, or prohibiting domestic violence, or growing marijuana. This rule require forcible injection of substances in the bodies–a power never before exercised by Congress. "Bodily autonomy" interest are at stake. Moreover, there is a strong federalism angle. Such health and safety laws are traditionally within the state police power. And the federal policy preempts all state laws which prohibit vaccine mandates.

OSHA will also likely raise arguments based on "collective action" federalism– a common argument from NFIB. To prevent the spread of COVID between the several states, Congress can regulate this local activity. Still that activity must be economic in nature. Believe it or not, this precise issue came up during NFIB v. Sebelius oral arguments. I blogged about it in a now-prescient 2015 post. (I could have never fathomed that my work on Obamacare would become relevant in so many contexts.) Justice Breyer asked Attorney Michael Carvin whether the federal government could mandate inoculation against an epidemic. Mike Carvin answered no, based on Morrison (a case Breyer dissented in).

JUSTICE BREYER: I'm just picking on something. I'd like to just — if it turned out there was some terrible epidemic sweeping the United States, and we couldn't say that more than 40 or 50 percent — I can make the number as high as I want — but the — the — you'd say the Federal Government doesn't have the power to get people inoculated, to require them to be inoculated, because that's just statistical.
MR. CARVIN: Well, in all candor, I think Morrison must have decided that issue, right? Because people who commit violence against –
JUSTICE BREYER: Is your answer to that yes or no?
MR. CARVIN: Oh, I'm sorry; my answer is no, they couldn't do it, because Morrison
JUSTICE BREYER: No, they could not do it.
MR. CARVIN: Yes.
JUSTICE BREYER: They cannot require people even if this disease is sweeping the country to be inoculated. The Federal Government has no power, and if there's — okay, fine. Go ahead.

In short, Carvin explains that if the federal government lacked the power to police domestic violence in Morrison, they lack a similar power to police against inoculation.

MR. CARVIN: Violence against women obviously creates the same negative impression on fellow citizens as this communicable disease, but the –and it has huge effects on the health care of our country. … I don't know why having a disease is any more local than — that beating up a woman.

I suspect a majority of the Court agreed with Carvin in 2012. That number is probably higher today. In a way, the testing option creates another parallel to NFIB: there is a mandate to get vaccinated, and a weekly penalty (the cost of testing) for those who disregard the mandate. Or, people have a choice between getting vaccinated, and paying for testing at their own cost.

Here, I think the major question doctrine plays an important role. To avoid reading OSHA as authorizing such a limitless power, the court would prefer a more narrow reading of the statute that did not delegate this power. The eviction moratorium case supports this narrowing construction. And there is a fall-back: testing. Severing the rule to permit testing, but not the mandate, could provide a viable outcome for the courts.

To reiterate my first point, even if these challenges are ultimately successful, the policy will have its intended effect in the interim: millions of people will get vaccinated rather than risk losing their jobs. Indeed, perhaps the best time to resolve this constitutional question would be after the pandemic concludes, and tempers cool.

These thoughts are only tentative, and I will revisit them after the rule is published. I welcome any comments.

NEXT: Today in Supreme Court History: September 10, 1949

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. While. It may not be perfect, the nexus between this rule and the text of the authorizing statute seems considerably closer than in the eviction moratorium case.

    It seems reasonably arguable that a virus is a “substance” or “agent.” Even if these things are limited to chemicals, there’s an argument a virus, the simplest kind of life form, more resembles a kind of chemical than a kind of animal.

    So it seems to me that OSHA has a much stronger case on this one than the CDC did on the eviction moratorium, especially if it’s entitled to Chevron or some other form of deference.

    1. A prion is simpler than a virus, being a protein. It causes Mad Cow disease. It does not even elicit an immune response. It is close to being a toxin. Drones could spray them over China during a war. See how they like what they did to us with their Kung Flu.

      https://www.wired.com/2011/01/airborne-prions-disease/?utm_source=WIR_REG_GATE

  2. Bodily autonomy….well now, that is an interesting term that has come up lately. Why wouldn’t any vaccine mandate (compelled administration) get shot down on those grounds? Do we really want to hand the government, regardless of level [fed, state, local], that much authority?

    This authority will be used in other ways and other contexts that we do not fully understand or appreciate. That happened with the Patriot Act. It will happen here.

    1. The reason it wouldn’t be shot down on those grounds is that bodily autonomy basically only exists in for purposes of abortion and contraception. It was crafted for that purpose, and that purpose alone.

    2. And then there’s this:
      Perhaps OSHA can mandate testing, which does not implicate bodily autonomy, but cannot mandate vaccines.

      Anyone who thinks that Covid tests don’t implicate “bodily autonomy” has never had one of those testing sticks shoved up his or her nose

      1. There’s the ‘bad’ nasal (ie, shoved up the nose till it feels like it’s scraping your brain), that is very effective. But there’s also the “good” nasal (ie, the very short swab that is not the tiniest bit uncomfortable, and goes no farther up than a nose-picker’s finger.). And, now, the oral. All are PCR tests, all are equally accurate.
        I literally am unable to understand why places are still using the “long” nasal test any more. It’s like, “Yeah; we could do a painless test, but we’re making a conscious decision to make it as unpleasant as possible. Even though our particular part of the country has an abundance of available tests and testing facilities, and even though we really want as many people as possible to be tested, and to be regularly tested.” Here in Santa Monica, the main hospital (ie, St. John’s) in the city is still using the long nasal test, even though all the other hospitals, urgent care facilities, doctors’ offices, etc etc are using the oral or the short nasal. When I’ve asked St John’s, their answer is always, “I don’t know. That’s a good question.”

  3. “In other words, it is not a proper use of federal power to require 100 million Americans to become vaccinated.”

    In this connection, by the CDC’s own numbers, about 120M Americans have already contracted Covid, they may even be the majority of the people who haven’t been vaccinated.

    And people who’ve already had Covid are about as well protected as people who’ve been vaccinated. (Even the CDC acknowledges that, before telling people they should get vaccinated anyway.) So, how can it be necessary to require people to accept a vaccine that is redundant?

    1. “by the CDC’s own numbers, about 120M Americans have already contracted Covid”
      Brett,
      We should we believe the CDC?
      Their multiplier of pi is just an unsubstantiated guess. But I’ll by the statement of at least 82 million. Adding the number of vaccinated COVID-naive persons, one can say that 200 million American already have some immunity. Moreover, COVID-induced immunity seems more resistant to immune evasion than the vaccine version.
      1) Where is the science in Old White Joe’s decree?
      2) Who gave him that explicit authority? The OSHA two-step is a sham.

      1. I hate our government and every citizen that backs these mandates is my enemy.

    2. The CDC says about 40.5 million cases: https://covid.cdc.gov/covid-data-tracker/#datatracker-home

      Where did you get that 120 million from?

      1. Big difference between confirmed cases via (sometimes dubious) tests, and many people, like me, who had the sniffles for two days and never bothered getting tested (it was at the start of this mess, before all the hoopla).

        1. If you really wanted hard numbers, you’d do antibody testing on randomly selected people. I’ve been continually amazed at how little of that is going on.

          1. At this point, can they differentiate between antibodies due to infection and antibodies due to vaccination?

          2. Antibody testing is even less accurate than the PCR tests.
            Three weeks after his second Pfizer shot, my son showed no antibody levels in serology. Also CDC does not recognize serology as an adequately accurate measure of immunity (for all CDC’s opinion is worth).

            1. They don’t recognize it as adequate because they’re under orders to push vaccination for everybody.

              1. That also. This entire “follow the science” mantra is total bullshit.
                But as I mention in my son’s case the serology was negative even after two shots.

      2. Estimated COVID-19 Burden

        Look at Estimated COVID-19 Infections, Symptomatic Illnesses, Hospitalizations, and Deaths in the United States”

        It’s based on reported numbers, and estimated percentage of actual cases that are reported.

        1. Brett,
          As I said, the multiplier on the number of reported cases is a GUESS.
          CDC’s guesses seem to be strongly influenced by politics. I do not trust them

          1. I don’t trust them, either. But, really, shouldn’t the CDC trust the CDC?

            Issuing policy that their own numbers contradict isn’t a good look.

            1. Look, CDC has blown what ever credibility it may have once had. Biden is straining to sound like he has a plan when he has nothing. It truly is disgusting that the world’s most highly developed technological society is in such a pitiful chaos.
              I can tell your from the submissions to my own scientific journal tht submissions from China are now outstripping those from the US.

      3. Cases are those individuals confirmed by a medical professional to show the symptoms.
        Infections is the estimated number of individuals who have had the disease, even if they never visited a doctor or showed symptoms.

        Here’s the CDC’s page if you want to look at it yourself:
        https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/burden.html

      4. john hopkins also shows 41m, add another asymptomatic 10-15m
        = approximately 50-55m

        Add the vaccinated 180m plus the covid infected = approx 200m-210m with immunity (approximately 1/2 of the infected have had both covid and the vaccine )

        the mandate is supposed to cover about 100m employees, though most likely 1/2 to 2/3 have already been vaccinated or been infected, so the effect is likely less than 20-25m employees.

        The reality is that the mandate is going to put a much smaller dent into efforts to suppress Covid.

        Another point is that the vaccine appears to be much less effective (60-70% vs 95%= effective).

      5. The CDC has published estimates that there are 4 times as many actual cases as confirmed cases.

        If fact the advice was, maybe still is, if you think you have the covid, stay home, do not go out and get tested or seek treatment unless you have trouble breathing or have a high fever.

        I know one woman that got covid from her husband who had a confirmed case, and when she called her doctor they told her stay home, no need to come in or get tested unless you are sick enough to need hospitalization, then call 911.

        1. But when were those estimates from? And how accurate are they? Because I’ve been hearing about these estimates for a year. At first, I was told that the pandemic would soon be over because, although only 2-3% of the population had a case, the total cases were closer to 30%.

          Today, approximately 12.5% of the U.S. population has tested positive. 16% in Tennessee, Florida, and NoDak. If we really did have 4x’s the number of cases, we wouldn’t be seeing the same case rates that we are seeing these days. You’d be at a point of near herd immunity.

          1. As I posted upthread, the CDC has a page specifically including this. Go ahead and read it yourself, because it can answer some of your questions:

            https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/burden.html

  4. Why doesn’t the CDC under it’s authorization have authority to issue such a mandate? Vaccination seems to be more a public health issue than eviction and is closer to the list of things the CDC is explicitly allowed to require.

    “including inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection”

    Since people are the source of infection and we can’t destroy them wouldn’t inoculation be a fairly reasonable and less drastic alternate?

    1. It’s a question of whether the CDC has actually been given this particular authority by statute. Maybe one could argue that they should have it, but they still don’t have it if Congress never gave it to them.

      1. My understanding is that the CDC has not been given the broad authority that OSHA has. Hence OSHA as the tool of choice here.

    2. Why can’t we destroy them? The answer to that question is also the answer to why the CDC can’t mandate an injection.

    3. A modest proposal: simply euthanize anyone who contracts this existential threat to humanity.

      I mean, since this disease is 99.8%+ survivable, why not set some examples “to encourage the others”.

      That’s what some of our compassionate “betters” are advocating by refusing medical care to the unvaccinated.

      Nevermind that the vast majority of the unvaccinated are minorities.

      1. By your “99.8%+ survivable” metric, how survivable is ebolavirus?

        1. This has nothing to do with Ebola.

          This has everything to do with fear mongering something that’s more like a really bad flu.

          1. No, the “survivable” claims almost always say that something like 0.2% of the population has died from Covid *so far*, so it’s 99.8% survivable. That’s why they insist that more deadly viruses have nothing to do with what they said, and stop there.

      2. An even more modest proposal is to euthanize anyone who votes against the party in power. After all, they are the ones who are perpetuating this existential threat to humanity by voting in the opposition, are they not? /sarc

        It’s amazing how clean and simple everything becomes once you simply assume that you are the only person who matters. If only we didn’t have our pesky representative government and our pluralistic society! It’s just so tiring.

      3. “since this disease is 99.8%+ survivable”
        Complete rubbish. Prove it.

        1. There’s this from November 2020: https://www.acsh.org/news/2020/11/18/covid-infection-fatality-rates-sex-and-age-15163

          It’s less than one percent for everyone under 64. Seeing as there’s probably far more people younger than 64 than older, 99.8 percent survival rate doesn’t sound that far off.

          1. That is only if you believe a large multiplier to convert reported cases to infections. But that multiplier is by its very nature not measurable. And as the pandemic becomes endemic, the number is meaningless

            1. Don apparently keeps denying the ability to estimate infection rates….

              It’s very odd.

              1. I doubt that. More that he doubts the ability to do it with any accuracy. And given how conservatives locked onto that more than a year ago and have had to keep tweaking the figure as case rates continue to rise, he has some good reason for that skepticism.

      4. Nevermind that the vast majority of the unvaccinated are minorities.

        Completely false… and yet still more accurate than your “really bad flu” claim.

        1. The narrative that all Vax resistors are right wingers is also false.

          1. Is anybody actually saying that?

            Self-identiffied conservatives and Republicans are disproportionality unvaccinated. But they’re not the only ones.

            Used to be that anti-vaxxers were mostly woo-woo hippies and the like. But that has changed significantly.

          2. The narrative that all Vax resistors are right wingers is also false.

            If anyone was saying that, it would be false. But what is true is that county level data shows the tremendous correlation between voting for Trump and not getting vaccinated.

        2. Darth Chocolate is a proud Kellyanne Conservative — bringing his alternative facts to a debate, becoming even more disaffected when his betters laugh at his belligerent ignorance.

  5. > it requires employees to inject a substance in their body.

    No, it requires weekly testing of unvaccinated employees. Some companies may simply choose to fire those employees, but that’s not required by OSHA.

    1. My university already requires weekly testing of ALL employees and, twice weekly testing of ALL students.

      1. You should get a new job.

        1. You should mind your own business.

          1. Bob figures you could move to Outer Jesusland, Ohio, and get a job combing low-budget residential deeds for transposed letters and unnecessary commas all day before driving 75 miles to the nearest Chick-fil-A for some of that delicious bigot chicken.

    2. And SB8 doesn’t require clinics to stop offering abortions.

    3. Subjecting people to a weekly intrusive test is almost worse than requiring them to inject a substance into their body

      1. OSHA already requires various types of regular tests for workers at risk of harm. It’s nothing new, and eventually the workers get used to it or find another job.

    4. If my company tried to enforce this, I’m guessing that it would lead to the spontaneous formation of a single-issue union and a complete work stoppage.

      1. That’s why your company, like many others, will simply fire the unvaccinated.

        1. If only labor disputes could be resolved by firing striking workers…

          1. If the strike is over whether or not to follow the law, then it can certainly be resolved by firing.

            That’s why you don’t see picket lines with signs that read “Ignore federal regulations!”

            1. That is precisely what these clingers see in their right-wing fever dreams.

              Well, that and the view from the front row of a Pat Boone concert.

      2. When your company implements the rule, please do come back and let us know how that prediction pans out.

  6. From a public policy perspective, I think this will do more to provide cover for employers and employees to get the vaccine than it will “harden hearts” against it.

    I know PharmDs in big pharma who are looking to change jobs rather than submit to a vaccine mandate. Those people are just morons.

    However, OSHA vaccination policies are about workplace exposure, but even then the employee can opt out. For example I am required to have Hepatitis B training and to be offered the vaccine, but I can sign a waiver to opt out.

    I’m not aware of any actual MANDATES, but others may have examples.

    1. I think it largely is intended to provide private employers with an excuse to force their employees to be vaccinated, with the government theoretically not actually compelling the shot.

      But only theoretically, because the employers know that thwarting regulators, even where you have a legal right to, is rarely prudent.

      1. Agreed, this is nothing more than privatizing enforcement. Now, it’s the boss that you are fighting against, not the government. If you want to fight, then two people who might be ideologically together are now opposed. However, if you actually like your boss and don’t want to get them in trouble, you might accede even if you don’t like it.

  7. David French has the best analysis I’ve seen so far:

    https://twitter.com/DavidAFrench/status/1436336207219286029
    Some excerpts:

    “Vaccine mandates are both common and constitutional, when implemented by proper authorities… However, the authority issue is key. As we’ve seen from the start of the pandemic, governors/state legislatures possess far more power to order lockdowns/masking/vaccines than the federal government. ”

    “So what’s the source of Biden’s constitutional power to order businesses to mandate vaccines?… OSHA, a regulatory entity created by act of Congress that Congress has granted really super-duper broad regulatory authority over private businesses.”

    “In the absence of a specific congressional vaccine mandate enacted under the commerce clause, the legal debate is likely to center around constitutional/statutory questions that have received minimal public attention and have minimal public understanding. “

    1. OSHA has long had the authority to require employee testing. For instance, they require annual fit testing of workers who use N95 respirators.

      Now OSHA will require weekly COVID testing of unvaccinated workers. Nothing more, nothing less.

      Whether companies want to fire those workers is not up to OSHA.

      1. The employers are in Jacobson’s position. They can follow the law, or they can choose to pay a fine. Unless there’s some way for OSHA to require specific performance?

        1. Yes, they can. OSHA has stop-work authorization.

          Not only can they demand you pay a fine.
          They can your entire facility down and then make you pay a fine.
          Also, ignoring their demands can get you arrested.

          This isn’t like Jacobson at all.

      2. Those are very different circumstances. A narrow regulation for N95 respirators, for those who use them, is very different from broad based vaccination of all employees.

        1. The requirement for testing only applies to unvaccinated employees. And they are only required to be tested, they are free to remain unvaccinated. That’s not broad-based at all, most employees will be exempt.

          Anyway OSHA can and has made rules that apply to all employees without exception. So this new testing requirement is less broad than what it has

          1. It’s broad in the scope and range of employees.

            Listen, for very specific industries, with very specific conditions, OSHA can regulate more invasive safety measures. And mandated weekly infection tests or mandated vaccinations are invasive.

            But this type of massive invasion over all industries is way, way, beyond it’s permit.

            1. OSHA is allowed to mandate whatever safety measures are necessary for worker protection. Nowhere in their “permit” does it say that “invasive” tests must be somehow balanced by applying only to a small number workers.

              If for some reason all Americans decided to suddenly start certain dangerous jobs, then all of us would be subject to regular testing. And as it happens, all workplaces became much more dangerous this year.

              1. You are arguing in circles.
                OSHA is not authorized “to mandate whatever safety measures are necessary for worker protection”.

                As the most trivial of examples, OSHA regulations cannot mandate the violation of rights without condition – consider the absurdity of mandatory executions of COVID positive workers, although this would help improve the safety of other workers.

                1. Yes, I agree that’s a trivial example.

                  In the real world, OSHA has broad power to mandate safety measures necessary for worker protection. Testing workers does not violate their Constitutional rights. Just ask the various employees who are required to undergo drug testing.

                  Nor are rights violated when the test is a COVID test, when it is performed weekly, or when millions of workers are affected.

                  1. I agree that OSHA does have a broad set of rights to mandate certain safety requirements, including blood tests, as authorized by law. As it is not clear if the existing laws allow OSHA to require every large employer (with arbitrary sets of employees excluded) to perform those tests, regardless of industry or risk.

                    If OSHA’s demands are not authorized by the laws, it certainly is a violation of your rights to be forced to obey them.

                    1. There is exactly one OSHA requirement that does not apply to companies with less than 10 employees. Now there is a second one that does not apply to companies with less than 100 employees.

                      All other OSHA regulations, and there are many, apply to all employers.

          2. Considering that most of us know that the vaccinated do in fact get and can spread covid if weekly testing required it should be required by everyone not only unvaccinated. IF the vaccines have any lasting benefit they were directed and lessening severity of disease in the recipient rather than preventing infection or transmission.

    2. French is an idiot.

    3. Pastor French has a good take. And if you don’t agree, he’ll have another. And another. And another…

    4. “David French has the best analysis”

      Forced vaccination is a blessing of liberty?

    5. Your forgetting something. The OSHA Primary Responsibility. This is an almost all-encompassing clause that roughly states “thou shalt be safe”.

      It was made to be a trump card. You can never get people hurt by saying “there ain’t no rule” because being unsafe is by definition against the regulation. However, this power can be and has been utilized to make up requirements on the spot or even post-hoc after an accident.

      All they have to do is say “being unvaccinated is unsafe”, and they can issue fines and demands based on that.

  8. Yes, this will harden attitudes against the vaccines, but since this isn’t about health but politics, why would they care?

    Cynical, yes. But sometimes you just have to break some eggs to move bad news off the radar screen.

    1. *ding*

      Thread winner!

    2. It continually amuses me that the same snowflakes whining about vaccines now are the same people who used to talk about leper colonies for HIV+ people.

      Entitlement is a hell of a drug, and most of these losers will be pretending they were never antivaxers at all in a year.

    3. It’s about health, shithead.

      1. I await your explanation of why the US Postal Service is exempted, then. I’m sorry to be the bearer of bad news, but they don’t care about you.

        1. I await your explanation of why the US Postal Service is exempted, then.

          Because there are union issues at play. This has been yet another episode of Simple Answers to Stupid Questions.

          1. Many other federal employees are unionized passport office and TSA are two that I know of, but I’m sure there are many others

          2. Right, but you would agree thats problematic though right? Like claiming to enforce authority over all private business, many who have their own unions with issues about this!, to do whatever you want, but when it comes to your own unions … nah thats too difficult to negotiate.

            Like one can separate the mandate itself, which I would argue is a good thing generally, with how it is being implemented, i.e. it doesn’t go though congress and can be blatant power grab, with hypocrisy regarding how your own employees are treated.

          3. If it was just about health then there would be NO exemptions. If it were a “pandemic”, requiring emergency powers, then we’d all have to do it. “For the children”, as Speaker Pelosi says.

      2. It is about politics Otis.
        Old White Joe is desperate to rescue his presidency

    4. No, it will not harden attitudes against the vaccines. People who are eligible but who aren’t vaccinated now are not persuadable.

      1. And if you live in a free society, you therefore MUST presume they have their own very good reasons for deciding not to be vaccinated, and they have weighted the risks and rewards.

        That is all you can expect of anyone — including yourself. You do not owe anyone a specific response, you owe them a good faith effort.

        1. No one is forcing anyone to get vaccinated. There are plenty of other jobs to be had.

  9. > Indeed, perhaps the best time to resolve this constitutional question would be after the pandemic concludes, and tempers cool.

    “This potentially-illegal thing is useful enough that we should avoid looking too closely until it doesn’t matter any more.” ?

    1. “Indeed, perhaps the best time to resolve this constitutional question would be after the pandemic concludes, and tempers cool.”

      Absolutely not. This pandemic is rapidly approaching the point of being endemic. Fight the legal battle now, or forever loose another freedom

  10. “This will be the rule that launched a thousand suits.”

    Nowadays, that seems to be the case with almost every action taken by the Executive. National policy now seems to be subject to the judiciary’s veto. Whether or not that is a good thing is debatable.

  11. My body my choice, except when I feel like it.

    Its almost as if they are laying this out so close to the Texas fight to rub it in.

    1. Or it could be that the vaccine was approved by the FDA about two weeks ago and they were waiting for that.

      1. Then what’s the problem now?

  12. If the government does not have the authority to mandate a vaccination, it does not have the authority to prohibit an individual from ingesting a substance.

    In the same way, if OSHA does not have the ability to mandate outside the workplace actions such as vaccinations, then the government does not have the ability to prohibit employees from ingesting certain substances (cocaine, heroin) outside of the workplace, or require testing for those substances.

    There is no legal difference between a mandate and a prohibition.

    1. “There is no legal difference between a mandate and a prohibition”

      Thats just wrong, see NFIB vs. Selibus (ObamaCare case)

    2. Most people are not so bold as to directly assert “A is not-A”, but you do you.

      1. Not quite; Mandating you do something is different from mandating you refrain from something, but they are both different from leaving you the hell alone.

        Mandating you say something, and forbidding you from saying something, are both identically 1st amendment violations of freedom of speech. So they’re legally the same, despite being factually different.

    3. By the same logic there is no difference between a ban on coming into work covered in the result of your masturbation session and sexual assault.

  13. The solution is for health insurance companies to require vaccination, or pay the price.

    1. What about our family friend who got the jabs and now has blood clots in both lungs. As a direct result. Life support needed. So who should pay for that?

  14. I agree with you that this can be more easily resolved outside of the confines of a pandemic, but this would also be fundamentally unjust. It would give the Biden administration carte blanche to enact any controversial edict they please, knowing that by the time the edict is resolved in the courts it will be long moot.

    1. ” it will be long moot.”
      You only wish. It could be endemic by then, and the Feds will have a new power over your life that will never disappear

      1. Bingo. Like the Spanish Flu or the Russian Flu, COVID-19 will become just another in the circulating variants of past diseases. That was pretty obvious by late last spring, when the first variants started showing up.
        A disease that is this contagious and mutates this fast will never – never – go away. And the PTBs love it, because it makes a great excuse to do whatever they want to you.

  15. (1) I tend to agree with most of your first point, though I think the experience with the Flu shot showed a lot of hold outs will get the vaccine if it means their job. Either way, I don’t expect this policy to significantly affect unemployment. A lot of employers employ less than 100 people.

    (2) A cramped reading of OSHA’s mandate disallowing protection of workers from disease would be nonsense. While I recognize that OSHA’s Bloodborne pathogen requirements aren’t part of the ETS authorization statue (and the COVID is not a bloodborne pathogen), OSHA clearly involves employee protection from disease. “Other hazards” in Section 6(1) would likely be interpreted as including a virus, at the very least.

    (3) Schechter Poultry, this is not. I would be surprised if the Court were to overturn this order on non-delegation grounds, but you never know with this group. I would consider coming to work unvaccinated as something that happens in the workplace–where you get the vaccine is irrelevant. Would coming to work naked be non-workplace activity if you took your clothes off at home?

    (4) The order does not mandate vaccines. You write as if vaccines and testing are mandated. Vaccines or testing is mandated. I don’t see this order being nearly as broad as the eviction moratorium, and I think it will be viewed differently.

    (5) It seems obvious to me that coming to the workplace unvaccinated and untested is workplace behavior. The framing that it is based on a “decision not to get vaccinated” as opposed to coming to work and potentially exposing people is tortured. If this were only a testing mandate, would it be a due process issue? How does adding a vaccine option to a testing mandate then make it more of a due process violation?

    (6) “This rule require forcible injection of substances in the bodies–a power never before exercised by Congress.” You willfully misstate the executive order, which does no such thing. There is a testing option as well. You need to overstate it to make a forced “proper” argument.

    I don’t know what this court would do, but I hope they have foresight that the next pandemic may even be worse than this one and not to create bad law based on people’s current risk tolerance.

    1. “the next pandemic may even be worse than this one”
      Dr. Fauci must have a return on his investment at the Wuhan Lab.

    2. is OSHA going to hold employers and those administering the shot liable if injury happens after getting it as a condition of employment? Because if you want to call it rare or not injuries do in fact happen. Some even die as a result. Or what about those that got the shots and then get covid. Are they paid compensation for not getting the protection they wrongly assumed they would get? And since these shots clearly do not prevent infection why not test T Cells and antibody levels instead of mandating shots for all. That way those who got shot can just keep repeating them until the government says enough IF they ever do

  16. I agree with Josh. This regulation is almost certainly unconstitutional. On two levels.

    1. It’s not clear that if Congress passed a law, that it would even be constitutional.
    2. But having the President do it via mandate instead is almost certainly unconstitutional.

  17. Hmm! There are two points in these four sentences.

    Professor Blackman writes
    “As far as I understand, OSHA has traditionally regulated conduct in the workplace. For example, employees have to wear masks and the like. But this regulation governs conduct outside the workplace. More precisely, it requires employees to inject a substance in their body.”
    On the first one, can’t OSHA require people to come to work prepared to do it safely? A truck driver might be required to have a CDL hazmat endorsement before even applying for a job transporting chlorine, as an illustration.
    The second is about the difference between a hazmat training requirement and an injection. But again, this is not done “forcibly”. Jacobson could have paid a fine rather than get vaccinated. Employees can get tested regularly rather than get vaccinated, if I understand right. If I’ve got that wrong, they’re still free to find jobs with employers of fewer than 100 people who are negligent about COVID safety.
    Someone with research skills I don’t have and a Westlaw subscription I don’t have could look up whether any of the requirements that health care workers have flu or other vaccines came from OSHA. There are many other possibilities but it would be an interesting precedent.

    1. Ok, let’s think about this.

      The Trump / DeSantis Admin institutes an OSHA rule that no employer of over 100 people can hire anyone who’s had an abortion. After all, they’re still free to find jobs with employers of fewer than 100 people who are negligent about baby killing.

      Are you really just completely convinced that there will never again be a Republican President?

      What makes you think that?

      1. What does having had an abortion have to do with workplace safety?

        1. Anyone who had an abortion clearly can’t plan ahead, and or has no idea how to balance risk and reward.

          Such bad judgement on their part makes them a threat to all their coworkers.

          Now, what does having one of the Covid vaccines have to do with workplace safety?
          You can still catch Covid if you’re vaccinated.
          You can still infect your coworkers with Covid if you’re vaccinated.
          In fact, since vaccinated people are more likely to be asymptomatic, they’re more likely to come in to work while infectious. So a good case could be made that vaccinated people are a greater risk to their co-workers for transmitting Covid to them, than the unvaccinated are.

        2. Besides which, you’re missing teh point.

          Once you’ve established the rule that the Federal Government can take away your employment based on an BS reason they can get past a judge, we are going to be sure to use that rule against you the next time we have power.

          And this is an obviously BS rule. Because if it was about public health and safety, Post Office workers and public school teachers would be among the first people to face the mandate, not exempted form it.

          “You dont’ have a right to work at a large company, so the Feds can take your employment there away at will”? Which is what the person I was responding to was arguing?

          You want to make that argument, we’ll be happy to use it against you

          1. Because if it was about public health and safety, Post Office workers and public school teachers would be among the first people to face the mandate, not exempted form it.

            Unlike other federal agencies, USPS is covered by OSHA. Is there some reason to think it will be exempted from the rule?

            State and local governments being exempt from OSHA, what legal authority does Biden have to impose the rule on public school teachers?

            1. Biden doesn’t have the legal right to inflict this on anyone, which is why it’s going to get a quick nationwide injunction, and SCOTUS will support said injunction.

              With all the freaking money the Feds put into public schools, public school teachers are one of the very few places where the Feds could make a reasonable argument for having this power.

              But, since it’s about politics instead of public health, it ain’t happening

              1. What the fuck does “it’s about politics” even mean?

                1. Are you really that stupid David?

                  Let’s quote another stupid David, David Hogg:
                  https://nypost.com/2021/09/09/masks-are-here-to-stay-as-long-as-libs-need-to-shame-their-political-enemies/

                  “I feel the need to continue wearing my mask outside, even though I’m fully vaccinated, because the inconvenience of having to wear a mask is more than worth it to have people not think I’m a conservative.”

                  Covid heath safety theater appears to be a delusion of the Left. Biden*’s doing this to pander to the safetism freaks that have been voting for his side.

                  But the Dems aren’t actually serious about it, it’s just political theater (“it’s all about politics”). That’s why they’re doing it in a way that violates the APA (notice and comment? We don’t need no stinking notice and comment!). This stupid plan’s pretty much an immediate replay of the Eviction Moratorium, with the MPP loss thrown in for good measure.

                  Which is why they’re not burning any political capital by pretending to go after actual Democrat interest groups.

                  It’s not about health or safety (I note you never even tried to respond to my question to you about what having had a Covid vaccine shot has to do with “workplace safety”. Indicating even you don’t actually buy that story line). it’s about bullying the Other to pander to your nutcase base

                2. The Biden* Admin is busy letting in illegal aliens who are infected with Covid.

                  By “letting in” I mean picking them up at the border, testing them, finding out that the have Covid, then dropping them off at a “quarantine” space in a US city, where nothing prevents them from going out whenever they want.

                  The Biden* Admin is not giving the (one shot) J & J Covid vaccine to illegal aliens they pick up along the southern border, and then release into the US, let alone Pfizer or Moderna.

                  So, if you’re a US Citizen who want to legally return to the US, you have to have a negative Covid test within three days of your arrival.
                  So, if you’re a US Citizen who want to legally work in America for a “small” (“small business is 250 or fewer employees) or larger business, you must get the Covid vaccine.

                  But if you’re an illegal alien invading America, then none of these apply.

                  Because it’s not about public health, it’s about politics.

                  That answer your question, numb nuts?

    2. I thought this from Harris yesterday was a nice touch:
      “When people are able to design their lives in a way that they can determine their own futures, we are a stronger democracy and we are a stronger nation. When people are able to make choices without government interference for themselves — in terms of their wellbeing and the wellbeing of their family, in consultation with whomever they may choose — we are a stronger society.”

      At another point in her opening remarks, she invoked a variation on the left’s “my body, my choice” mantra:

      “And, needless to say, the right of women to make decisions about their own bodies is not negotiable. The right of women to make decisions about their own bodies is their decision; it is their body.

      “And no legislative institutions have the right to circumvent the Constitution of the United States in an attempt to interfere with, much less to prevent, a woman to make those decisions.”

      1: I hadn’t realized she was such an anti-trans bigot. Doesn’t she know that men can give birth?

      She’s erasing every trans man here! She must be cancelled!

      2: “And, needless to say, the right of women to make decisions about their own bodies is not negotiable”. So, I guess this means that the vaccine mandates don’t apply to women?

      1. “When people are able to make choices without government interference for themselves — in terms of their wellbeing and the wellbeing of their family”

        That does not apply to COVID vaccines. More bullshit from Joe’s insurance policy.

        1. She was talking abotu abortion

          I’m applying it to people’s “my body, my choice” decision to reject the Covid vaccine

  18. ” The Biden Administration no doubt recognizes that the courts can block this policy. But this risk was worth taking”

    No, this OSHA idea was the same bad kitchen cabinet advisors that let the the CDC fiasco

    What will happen is that SC will use this opportunity to prune OSHA.

    If OSHA has the power to mandate vaccines based on a viral “hazard” then they literally have the power over any bodily choice, because cancer heart disease….

    1. The most ardent pro-vaxxer at my workplace is grossly obese, so much so, that we are not talking about just cankles here. Also, HR director pushing for masks, well, her feet are so damaged from the obesity introduced diabetes that she gets to park in the handicapped spot.

      Meanwhile, from the window of my office, I can see the smoking area, and those folks dutifully putting their mask back on before coming back inside after smoking a fag.

      1. Obesity cannot harm other employees. COVID can. So can smoking indoors, which is why your coworkers are required to go outside.

        1. Yea, the flu going around every had the same problems just a couple years ago, and nobody had a sh*tstorm about that.

          And if you can’t recognize the hypocrisy, that you’re being obtuse.

          1. COVID is more dangerous than the flu, so it is not hypocritical to treat it differently than the flu.

            1. The hypocrisy is the the poor health decisions combined with covid excess. It’s like the guy with a well funded retirement plan going 95 down a city street in a car with bad brakes.

              I don’t know where you’re getting your numbers, but the mortality rates for the flu are roughly analogous to COVID. Worse for some cohorts, better for others. Used to be 500 under 18 kids died every year of the flu, but it’s far less from COVID. Covid seems worse for the obese and those with other conditions, but not for anyone without a comorbidity, and less deadly than the flu.

              In all, about at 99.8% survivable.

              So, if we didn’t flip our sh*t about the flu just two years ago, we shouldn’t flip our sh*t about covid.

              1. More than 600,000 Americans have died of COVID. On average, fewer than 50,000 Americans die of flu each year.

                I don’t know where you’re getting your numbers, but mine come from the CDC. And they clearly show that COVID is more dangerous than the flu.

                1. Trying to reason with disaffected, delusional, half-educated, anti-social clingers is pointless. You’d probably have more luck with tossing some scriptural references at them.

                2. So those 600,000 were all hale, and hearty individuals?
                  Intelligent people know the difference between, ‘died of’ and ‘died with’ especially when the PCR test was cranked up to make anything test positive.
                  Probably explains why PHD’s are so anti-vax, compared to those with ‘lesser Degrees’ i.e. as Artie would say, half-educated.

                  1. Intelligent people know the difference between, ‘died of’ and ‘died with’ especially when the PCR test was cranked up to make anything test positive.

                    Tempe Jeff is not a doctor or scientist or educated person, but he watches a lot of YouTube videos.

                    Probably explains why PHD’s are so anti-vax

                    This ‘fact’ is also wrong.

                    1. https://www.msn.com/en-us/health/medical/americans-with-phds-are-most-reluctant-to-get-vaccinated-against-covid/ar-AANjRHh

                      Researchers surveyed just over five million US adults in an online survey, with 10,000 reporting that they were educated to PhD level.

                      The report showed a surprising U-shaped correlation between willingness to get a Covid vaccine and education level – with the highest hesitancy among those least and most educated.

                      Of those surveyed, 20.8 per cent with a high school education were reluctant to get the shot, and 23.9 per cent with a PhD were against it.

                      That’s just the first one I came across.
                      Want to try again?

                    2. “The data was published as a pre-print on medRxiv.org, and has not been peer-reviewed.”

                      It also relied on self-reporting, and people have already noted that the same respondents that claimed to be vax-hesitant PhDs were also disproportionately claiming to identify as attack helicopters and the like (because PhDs were such a small section of the responding class, a handful of prank responses could completely skew the data for that subgroup.)

                      And there’s this: https://www.wnct.com/news/north-carolina/fact-check-setting-the-record-straight-on-claims-about-vaccine-hesitancy-among-ph-d-s/

                    3. “because PhDs were such a small section of the responding class, a handful of prank responses could completely skew the data for that subgroup.)”

                      “10,000 reporting that they were educated to PhD level.”

                      “23.9 per cent with a PhD”

                      So that’s 2,390. Exactly how many “pranksters” are you assuming?

                      “This ‘fact’ is also wrong.”

                      Your claim barely has any substantiation at all. For you to go from such weak sauce to “This ‘fact’ is also wrong” is rather dishonest of you.

                      The best you can do is “This ‘fact’ is under dispute.”

                3. How many died in 2020 of flu? Can you find that data?

              2. Kalak, I cannot agree with your comparison between COVID and flu because Flu has an extremely high non-diagnosis rate. The number of people who get the flu and either ignore or just stay home without the doctor is large, as there isn’t much that can be done.

        2. Being unvaccinated is not the same thing as being actively infected and contagious.
          Being unvaccinated is not contagious, and prevents no risk to your coworkers.
          If you are infected and and symptomatic, you are (probably) contagious and present a risk to your coworkers whether you are vaccinated or not.

    2. If OSHA has the power to mandate vaccines based on a viral “hazard” then they literally have the power over any bodily choice, because cancer heart disease….

      What does “cancer heart disease” have to do with workplace safety? Is heart disease communicable?

  19. Many people will simply choose to be fired, rather than get the jab. Others will submit fraudulent documents, which will lead to discipline. Unemployment numbers may actually trickle up because of this executive action. People do not respond well to mandates. Indeed, I fear this federal diktat will harden the hearts, so to speak, and exacerbate vaccine hesitancy.

    At risk of channeling Arthur Kirkland, a prediction, and one I will be happy to back up with money if anyone has an objective way to evaluate the results:

    Virtually no one will quit their jobs over this, not will any significant number try to falsify results. Rather, they will comply with modest grousing, which will quickly subside when they realize that getting vaccinated is not, in fact, a burdensome requirement of any kind.

    1. How much do you want to bet? And what metrics will we use to define “significant” and “modest”.

      1. I don’t know, propose something and we’ll see if we can get it sounding fair to both of us. If so, I’ll pony up whatever amount you think we need to make it worthwhile.

        Or if you don’t want to take the time and effort (I don’t myself), just write it off as an empty rhetorical flourish.

        1. Meh, I don’t want to reveal my personal information to make an actual bet. Have you seen what’s going on in France regarding this? It’s a line in the sand for a lot of people.

          All you had to do to avoid martyrdom as a 1st century Christian was wave a little incense around at the alter of the emperor. Even pagan Romans didn’t believe he was an actual God. Alas, not doing so got a lot of people (in your mind needlessly) killed.

          1. If this leads to increased vaccination, that’s great.

            If it leads to companies shedding their lesser employees, that’s fine, too.

    2. People have already been arrested for falsifying vaccination status.

      1. They are doing it wrong, you bribe the low paid guy at the Walgreens.

        Garbage in, garbage out.

        1. Costs too much.

          Easier to take the piece of cardboard, photocopy it, and put in the dates and vaccine yourself.

          1. You can do the same to get a Harvard degree.

            But vaccination records, like degrees, can be verified with a third party. So maybe think twice before committing fraud.

      2. In a country of hundreds of millions of people you can usually count on a few doing unusually stupid things, which is why I said it wouldn’t happen in “significant number[s]”, not “absolutely no will do it under any circumstances”.

    3. Well, I’d likely comply. While the vaccine carries little benefit for me at this point, the likely downsides are fairly minor, too. Really severe side effects are rare. The cost benefit favors skipping it, but if you throw in “not getting fired” as a benefit, things look different.

      The most likely side effect, actually, is that I’d lose a lot of good will that I currently feel towards my employer, and switch from disliking the current administration, to passionately hating it.

      1. So now we’re parsing various shades of disaffectedness among our vestigial clingers?

    4. On the contrary, I predict either mass non-compliance or full-out strikes by many companies in critical industries, even non-unionized plants.

      1. Time will tell.

        I’d invite anyone else to stake their claims here, and we can circle back in a couple of months when Prof. Blackman posts about how the circuit courts upholding the rule totally didn’t read his law review article.

      2. ” mass non-compliance or full-out strikes ”

        Some firings, perhaps, mostly involving employees who won’t be missed. That’s about it.

      3. There isn’t going to be mass non-compliance. We already saw in the case out of Texas where some idiots sued Houston Methodist Hospital over its employee mandate (and lost, bigly): there were roughly 200 refusers out of 26,000 employees. Talking shit on Facebook is different than actually voluntarily terminating one’s paycheck.

        1. They are pursuing the case and as a result their hospital system has not mandated it anymore.

  20. On a broader note…. I’ve observed a large amount of…dislike…from certain liberal corners on those people who are unvaccinated. Extreme dislike. To the point where if someone unvaccinated would unfortunately get COVID, they should be denied an ICU bed. Again…if you are unvaccinated, and get COVID, it’s being suggested that you be denied medical care. Which is…alarming.

    https://thehill.com/blogs/in-the-know/in-the-know/571388-jimmy-kimmel-jokes-unvaccinated-shouldnt-get-icu-bed

    I’ll be honest. I haven’t observed this public level of what can only be described as hatred towards a group of people since the 1980’s. Specifically, I’m talking about the HIV epidemic, especially within the gay community. And much of the same language was used. That these people made poor choices and “deserve to die” for their choices and should be denied medical care.

    That is wrong. If you were gay and having lots of unprotected sex during the 1980’s, that was a unwise choice in my opinion. If you ended up getting HIV due to your choices, that would be an unfortunate consequence. But you should absolutely get the same medical care we would give any other individual, and should never be denied medical care for your choices, no matter how unwise they may have been. And there should not be laws to ban your choice to have unprotected sex.

    Likewise, if you choose not to get vaccinated during the current epidemic, that would be an unwise choice in my opinion (but still your choice to make). If you got COVID, that would be an unfortunate consequence. But you should not be denied the same medical care we would give any other people. And there should be no law to “mandate” you get vaccinated against your will.

    We should be a tolerant community, accepting of each others differences and different choices. And increasingly, it seems that tolerance is being lost.

    1. Dehumanization. It’s about stage 7 or 8 of the 10 steps of political persecution leading to a genocide.

    2. Funny thing. One of the guys responsible for the fear and intolerance against HIV patients in the 1980s was the guy who stood up on television while testifying to Congress, and told the world that the US had determined that HIV was airborne, and could be transmitted by performing normal “daily activities in the same room as an HIV-positive person” – an up-and-coming politically savvy bureaucrat named Anthony Fauci.

      This time, however, we’ve gone beyond intolerance of infected people, and moved on to intolerance of people that are at a higher risk of maybe someday becoming infected, even if not symptomatically.
      It would be great if people were willing to appropriately judge risk again. But as long as there is power (in clicks or votes) in ramping up irrational panics, they will continue.

      1. I’ve seen where he suggested the possibility:
        The Acquired Immune Deficiency Syndrome The Ever-Broadening Clinical Spectrum
        Anthony S. Fauci, MD

        “Routine close contact, as within a family household, can spread the disease. If indeed the latter is true, then AIDS takes on an entirely new dimension. If we add to this possibility that nonsexual, non-blood-borne transmission is possible, the scope of the syndrome may be enormous…the possibility that we are truly dealing with AIDS in children.”

        But I haven’t seen anywhere that he claimed it was proven.

        1. Full disclosure: that quote comes from a 1983 paper on AIDS, written even before HIV was discovered. At that time, nobody really knew what caused AIDS or how it spread:

          “The finding of AIDS in infants and children who
          are household contacts of patients with AIDS or persons with
          risks for AIDS has enormous implications with regard to
          ultimate transmissibility of this syndrome. First, it is possible
          that AIDS can be vertically transmitted. Perhaps even more
          important is the possibility that routine close contact, as within
          a family household, can spread the disease. If, indeed, the latter is true, then AIDS takes on an entirely new dimension. Given
          the fact that the incubation period for adults is believed to be
          longer than one year, the full impact of the syndrome among
          sexual contacts and recipients of potentially infective transfu¬
          sions is uncertain at present. If we add to this the possibility
          that nonsexual, non-blood-borne transmission is possible, the
          scope of the syndrome may be enormous. Again, I must
          reiterate the fact that we must be cautious in our acceptance of
          these infant cases as being truly AIDS.”

          1. Sure, my point was that I couldn’t find anything but some early speculation based on practically no evidence. Came up completely empty on Toranth’s claim.

            1. I know, but I wanted to provide some context for the first sentence of your quote, just in case people stopped reading. 🙂

        2. The testimony I’m referring to was from 1984, at which point HIV had been identified (early 1983).

          You are correct, though – He actually said that AIDS was transmittable, not HIV.
          At that point in time, AIDS was known to not be airborne, and only a few people were pushing the idea that a single child of an AIDS patient that also had AIDS was due to airborne transmission. The majority – including CDC and Fauci’s own NIAID – did not think so. His staff later claimed he had not read his briefing papers and misremembered the facts.

      2. I googled the phrase “daily activities in the same room as an HIV-positive person” — a phrase you put into quotation marks — and can find exactly zero hits for it. Did Fauci actually say any such thing, or did you just make up those words?

        I suspect the latter, given your very specific description of something that almost certainly didn’t happen – that Fauci was “on television while testifying to Congress.”

        And if so, you almost certainly fabricated the claim that Fauci said that the US had determined that HIV was airborne.

    3. There is a missing middle position, which is if you engage in dangerous behavior and get sick because of it, you are culpable. It’s not that they “deserve” to get sick, but rather that they brought it on themselves.

      1. “Culpable”? That’s an interesting word to use. What’s your context for it? The legal definition of culpable? Guilty and blameworthy? Legally responsible for a criminal act?

        When you use a word like that, it starts to imply that they don’t “deserve” equal treatment. That because the choices they made resulted in a sickness, that the are guilty, and may not deserve the treatment others get. Who didn’t necessarily commit the guilty act.

        Is that your view?

        1. Culpable as in they, like you, are independent agents, responsible for their own actions and inactions. If you decide to jump out of an airplane, it’s on you to make sure you are prepared for it.

          1. I might consider using the word “responsible” rather than “culpable”. “Culpable” implies guilt and that the item being done is “wrong”.

    4. Funny because in hospital where my family work have 50/50 vax vs unvax. And census is very low overall for all hospital beds. Only 33 covids in there today which is 1/3 of what it was a year ago. Major city teaching hospital. Beds are not full but nurses have quit for higher travel rates and due to mandates.

  21. I believe it was Professor Volokh who said the superpower of lawyers is the ability to turn anything into a procedural question.

    So I’m curious to learn how this looks when viewed through the lens of the Administrative Procedures Act.

    Professor Blackman opened this line of thought by quoting criteria for an ETS and questioning whether they apply. Would the OSHA order be on sounder ground later if it were also published in the Federal Register and whatever else is involved in normal rule-making?

  22. But this regulation governs conduct outside the workplace. More precisely, it requires employees to inject a substance in their body.

    How can you square this claim with your reading of Jacobson? Indeed, if (as the reporting suggests) the OSHA rule will allow non-vaccinated employees in the workplace with a negative COVID test, doesn’t that render it substantially less coercive than Jacobson?

    1. I find it difficult to see how Jacobson could be invoked at this time. The vaccines appear to protect recipients against serious illness and, if so, it undermines the argument that an emergency remains (i.e., the vast majority who wish to avoid serious illness has an easy means to do so). Alternatively, if one were to argue that the vaccines are not very effective against serious harm (which, as far as I know, is incorrect), then the basis for a mandate as an emergency measure would lose its force. Am I missing something?

      1. Since I guess my point wasn’t clear, I’ll elaborate:

        Prof. Blackman has spilled vats of metaphorical ink insisting that Jacobson didn’t actually endorse a vaccination “requirement” because the consequences of the challenged statute were being sentenced to a modest fine rather than physically forced to submit to inoculation. As pretty much everyone has pointed out, that distinction doesn’t seem to have any significance for the actual holding in Jacobson. But if you’re going to take it seriously, I don’t see how you can call the OSHA rule a requirement either.

        As for your point, how is that any different from the situation in Jacobson itself?

        1. Thanks for the clarification. As for your question, I was assuming (possibly incorrectly) that the lethality of smallpox (I believe about 1 out of 3 infected died) vs covid (which I think has an estimated infection fatality rate of about .15% in the non-vaccinated) would affect the analysis.

    2. Once a week testing. A joke. You could get it an hour after testing. And vaccinated can get it and transmit it too that is on the books CDC and FDA admit this. SO if one group testing they all should be testing.

  23. I have very little knowledge of the OSHA statutory provisions. I am curious though as to whether there is any language that grants OSHA the authority to issue rules regulating contagious disease among employees (as opposed to, for example, disease-causing substances used by the employer). If the statute does not contain such language, wouldn’t that be the most straightforward argument that OSHA has exceeded its authority here?

    1. OSHA has broad authority to protect worker health. For instance, they regulate the use of N95 respirators when they are used to protect hospital workers from airborne disease transmission (eg tuberculosis).

      For decades, OSHA had required workers to be regularly tested to make sure the N95 is keeping them safe. And if they can require worker testing to protect against TB, then they can surely require worker testing to protect against COVID.

      1. Are the N95 and TB regulations in the healthcare setting for the purpose of protecting employees from occupational hazards (i.e., sick patients)? If so, that seems like it would fall within the intent of OSHA. But I have never heard of OSHA regulations designed to protect against workers from contracting disease from each other. Of course, as previously noted, I do not know much about OSHA.

        1. OSHA regulations are meant to protect worker health, period. It doesn’t matter to OSHA if a worker is threatened by exposure to a patient or to another worker. It also doesn’t matter if the threat is physical (requiring hardhats), biological (requiring PPE), acoustic (requiring earplugs), chemical (requiring fume hoods), laser (requiring eye protection), or any new threat that may arise.

          If there is a threat to worker health, OSHA can get involved.

          1. I’m not saying you are wrong, but that strikes me as very broad. Could OSHA enact regulations prohibiting people from going to work with a cold to stop the spread to co-workers? What about the flu (which can be deadly for the elderly)? Could they bar peanut butter sandwiches (like they do in schools)? I guess if the standard is anything to protect worker health, this is all fair game under OSHA. I’ll take your word for it but I am surprised.

            1. OSHA has long had regulations in place to protect workers from blood-borne disease (e.g. mandatory sharps containers), so in principle they could also regulate diseases with other routes of transmission. Furthermore, OSHA already has regulations in place to protect workers with latex allergy, so in principle they could also protect workers with other types of allergy.

              But just because they can doesn’t mean they will. Flu does kill the elderly, but most elderly aren’t workers. Schools ban peanut butter mainly because they don’t trust little kids to avoid it, adult workers can easily avoid peanut ingestion without getting OSHA involved.

              Like every other agency, OSHA has to choose its battles. But COVID is certainly a worthy target.

  24. One possible (likely?) outcome is that courts do what they have done since the start of the pandemic: delay and allow rights to be trampled and tyranny to go unchecked until they are comfortable with the news. And only then uphold rights in a pro-forma manner or dismiss the cases as moot after the “emergency” actions are no longer in place.

    Over the last 18 months courts have shown us that they mostly won’t protect rights when rights are under assault. They’ll sometimes make ineffectual statements later when protecting rights is no longer needed.

  25. 30%+ in some poll claim they will quit rather than become vaccinated, which is a very easy thing to declare when you’re not actually faced with the decision. I feel highly certain the percentage of people who actually quit their jobs rather than get vaccinated will be considerably lower.

    And I think many companies will take advantage of this to require their employees to get vaccinated regardless of what ultimately happens to the rule.

  26. There are a couple of pinned posts at vivabarneslaw.locals.com which look very useful to the employee who wants to refuse the vax. One of them is a letter you can give your employer to claim exemption.

    I expect this rule to be struck down very quickly and with finality, not because of how it was enacted but because it violates the individual’s right not to be pressured into accepting medicine.

    1. I expect this rule to be struck down very quickly and with finality, not because of how it was enacted but because it violates the individual’s right not to be pressured into accepting medicine.

      Area Man Passionate Defender Of What He Imagines Constitution To Be.

    2. I’m not going to create an account for the privilege of checking, but I’m pretty confident that those letters aren’t going to be useful for much besides making sure that the people who take out the trash at the HR department are occupied.

      1. I’m not going to create an account either, but I don’t need to do that to see that it’s Robert Barnes, who is a Trumpkin lawyer on social media, somewhat more competent and sane than the Kraken people, but that’s a rather low bar.

    3. “I expect this rule to be struck down very quickly and with finality, not because of how it was enacted but because it violates the individual’s right not to be pressured into accepting medicine.”

      Is that legal analysis

      (1) a Regent, Liberty, Ave Maria, or South Texas law degree talking

      (2) something you believe you recall from the discount homeschooling outline your parents used

      or

      (3) something you heard on Hannity, Ingraham, Carlson, or NewsMax last night?

  27. I regret that I have but one arm to give to the vaccine. Since I already received my shots, I will be unable to participate in any forms of civil disobedience. I suppose I could “identify” as unvaccinated. That’d work.

  28. This is a serious political misstep by the Biden Administration and they should hope that it gets struck down.

    For some time now Covid deaths have been overwhelmingly to the unvaccinated, who are overwhelmingly Republican. With 656,000 total deaths so far, a rough guess is that there has been a net loss of about 150,000 Republicans. This process should be allowed to continue and indeed encouraged to accelerate.

    1. I suppose more to the point, and less ghoulishly, this is really going to increase the turnout among unvaccinated next year.

      1. Those that live that long, that is.

        1. That would be almost all of them, even if every one of them caught Covid, which isn’t going to happen because many of the unvaccinated have already had Covid.

      2. ” I suppose more to the point, and less ghoulishly, this is really going to increase the turnout among unvaccinated next year. ”

        Because they’ll have plenty of time on their hands after getting fired?

    2. The largest un-vaccinated group is blacks.

      Where is my moral scold to chastise you for your lack of empathy?

      1. Let me revise my sttaement, blacks being only 12% of the population cannot be the “largest un-vaccinated group”.

        Blacks have the largest percentage of un-vaccinated people.

        1. Even with your correction the statement is still very wrong, unless you’re going to choose a very limited meaning of the word “group”

          The following groups have a lower vaccination rate than “all adult Black Americans” listed in order of unvaccinated percentages:

          Uninsured under 65
          White Republicans
          All Republicans
          Rural residents
          18-29
          30-49
          Evangelical Christians
          Adults without college degree
          Hispanic adults
          Men
          Independents

          See https://www.washingtonpost.com/politics/2021/08/04/what-about-black-people-defense-republican-vaccine-hesitancy/

          1. That opinion column cites “Polling data from the Kaiser Family Foundation”.

            Actual vaccination stats say otherwise.

            1. If you can’t trust a poll about Trump because of the shy voter effect, or gun ownership (mine were all lost in a tragic boating accident years ago) why would anybody trust any poll about vaccine status?

              1. You can’t trust any issue poll. No exceptions.

                1. Ok. So what are these “Actual vaccination stats…”

                  Something you heard from some guy at the bar or on a facebook meme from your high school buddy?

                  1. Overall, across these 42 states, the percent of White people who have received at least one COVID-19 vaccine dose (52%) was roughly 1.2 times higher than the rate for Black people (43%) and 1.1 times higher than the rate for Hispanic people (48%) as of September 7, 2021.

                    From the KFF, summarizing the CDC’s weekly reports of actual vaccinations.
                    (States excluded were excluded for having bad data reporting)

                    The gap has been narrowing steadily since this Spring, though, so by this time next year it would likely be different.

    3. This is one of the most brilliant things I think I’ve ever seen you write here. So much more plausible deniability than dragging out the guillotines — and a lot cleaner to boot!

      1. The guillotines, in this case, are self-operated. Though Biden is trying to take them away.

        1. This is why Republicans need to let the abortion mills keep going. We need more black babies cut up before they become democrat voters in 18 years form when they formerly would be torn apart inside the womb.

          Oh, who am I kidding, voters =/= votes. It doesn’t matter.

    4. Are you actually supporting the death of more Americans?

      1. In a stupid way, the same way that the “white death” from opioids was cheered on by leftists, and the same way, as above, I think that Republicans should leave abortion to keep happening, if not fund it via government policy for all women of color.

  29. I am curious on Prof. Backman’s take on the legality/validity of the Federal Employee mandate… The Executive Order cites Sections 3302, 3303 and 7301 of 5 USC. The first references ascertaining certain facts regarding applicants for executive branch federal service, and nothing at all about established employees. The second seems irrelevant, referring to what roles a Senator or Representative may or may not play in the hiring of a executive branch federal employee. The third is regarding the establishment of rules for conduct of executive branch federal employees. In combination, all three referenced sections are likely shorter than this comment. It seems a stretch that there is any authority within these sections that form the basis for such a sweeping mandate. Further, public comments from administration officials, to include the President himself, suggest that the actual motivation is political in nature, rather than actually about workplace safety, which seems to place it in the company of the Census question case…

  30. To Prof. Blackman’s first point, he glosses over the fact that the order is not actually a vaccine “mandate” because it doesn’t actually require anyone to get vaccinated. If employees at covered companies don’t want to get vaccinated, they don’t have to. They would just need to submit to weekly testing to enter the workplace.

    To his third point, this doesn’t regulate conduct outside the workplace. Rather, it sets certain requirements (vaccination or testing) that need to be satisfied in order to be present in the workplace. Nobody cares at all what anyone does outside the workplace, so long as you are either vaccinated or submit to testing while in the workplace.

    Lastly, to Prof. Blackman’s point re the necessary and proper clause, the order is not a mandate. Prof. Blackman’s statement that the order would “require forcible injection of substances in the bodies” is simply not true. Anyone can choose to submit to testing instead.

    1. If the company is paying for the testing you may have a point. If the individual is expected to pay for it, however, it is in reality optional in name only…

      1. It’s as optional as the various wellness incentives that companies already routinely offer their employees. There is no real difference between foregoing an annual $500 insurance incentive and spending $500 annually on COVID testing.

        1. In what world is there no difference in those things? In one instance an employee is choosing to forgo an incentive, and in the other they are forced to pay money out of pocket to keep their job.

          1. Because money is fungible.

            If a company cut everyone’s salary by $500, then offered an additional $500 as a wellness incentive to vaccinated employees and free testing to the unvaccinated, is testing once again “optional”?

            1. If a company cut everyone’s salary by $500

              First, assume a ladder….

              Seriously, this isn’t the sort of thing companies out in the real world actually do — the ones that want to be around for any length of time, anyway.

              1. I hate to break it to you, but lately companies have been cutting pay all over the place. And pay cuts were for the lucky employees, the unlucky ones were fired.

                1. I hate to break it to you, but lately companies have been cutting pay all over the place. And pay cuts were for the lucky employees, the unlucky ones were fired.

                  You and I clearly occupy different worlds, my friend. In the reality-based one I choose to live in, there are nearly 11 million open positions, and employers are having to come up with increasingly creative incentive structures to get employees to start a job at all, much less to stay for any length of time.

                  1. Roughly 1 in 3 full-time workers have experienced a pay cut due to the coronavirus pandemic:

                    https://www.cnbc.com/2020/12/08/1-in-3-workers-faced-pandemic-pay-cuts-but-recovery-is-uneven.html

                    The existence of open positions today does not in any way mean that those cuts did not occur.

                    In fact, if workers quit as a result of those pay cuts, and if those “creative incentive structures” involve “noncash offerings” (from your article) because they are “cheaper than across-the-board pay raises” (also from your article), then you might predict that those positions will remain unfilled for a while longer.

                    1. according to a recent MagnifyMoney survey of 984 professionals surveyed Nov. 6 to 11.

                      LOL, on so many levels. Rejoin me in the present-day real world whenever you’re ready.

                    2. During the lockdowns of 2020 and early 2021, many businesses were forced to fire or cut the pay of their employees.
                      Now that more businesses are opening up, there are a great many open jobs and many employers are offering significant incentives to get new hires.

                      If you’ll notice, these are both true statements, that take place at different times. However, any discussion of future policies should probably be based on the current employment market, or you should state how and why you think the market is going to be different.

                    3. @Toranth

                      I was replying to someone who said that cutting salaries “isn’t the sort of thing companies out in the real world actually do”. Regardless of future policies, salary cuts did indeed happen during the pandemic as documented by multiple studies. Here’s another one:

                      https://bfi.uchicago.edu/wp-content/uploads/HurstBFI_WP_202058_Revision.pdf

                      > businesses have cut nominal wages for almost 7 million workers while forgoing regularly scheduled wage increases for many others.

  31. Correct me if I’m wrong but didn’t the Supreme Court in Lopez refuse to necessarily preclude the possibility that non-economic activity can never substantially affect interstate commerce? In other words, even if a virus in deemed non-economic in nature, it can still affect interstate commerce. Am I wrong? Imagine there was a virus that was extremely contagious (like a person’s physical presence alone could shed the virus across 100 ft and people catch it just by being near it) and extremely deadly (say 90% death rate). We’re talking about a virus that could threaten humanity. Being a virus regardless how deadly it would be non-economic but I would say the federal government could mandate a vaccine. If you do a cause–>effect chain for this crazy hypothetical virus the substantial effect on interstate commerce would be fairly direct, certainly far more direct than the Lopez case or that beating women case. For example, beating women–>broken homes–>crime/drugs/gangs–>home values drop–>tax base falls–>bad public schools–>depopulation……… you can go on and on and it’s hard to say when the substantial effect occurs. However, take crazy hypothetical virus–>uncontrolled spread–>90% of America dead–>American economy collapses. No, I don’t think COVID would work here but I could imagine the possibility.

    1. Of course the virus in your hypothetical is not COVID, which at present has only affected about 12% of the population (documented cases) and has been survived by 98% of those affected (said another way only 0.2% of the US population has succumb to the virus to date)

  32. I appreciate this post particularly given how early soon it’s being offered after the announcement.

    A minor technical point: OSHA’s “general duty” clause is section 5(a)(1); that’s not relevant here as OSHA would be issuing a standard, compliance with which is required under section 5(a)(2).

    At any rate, I agree with most of the considerations offered above. Let me elaborate though on the third point. The OSH Act of 1970 is a delegation of authority to regulate workplace safety — occupational injury and illness. Of course there is a risk of contracting COVID at work. But it also seems pretty clear that the use of OSHA in this instance is not truly an attempt at regulating occupational injury and illness. Rather, it is an attempt at pushing through a public-health measure.

    How do we know this? Well, among other things (most importantly, the political context), we might consider what other OSHA standards do not apply to small employers. As best I can recall at the moment, the answer is none. All general industry (29 CFR section 1910) and construction (29 CFR section 1926) standards apply to all employers in those sectors, whether you’re GE or a mom-and-pop shop. Could you imagine permitting a small fabrication shop to equip itself with unguarded saws? Of course not. (In fact the safety records of small employers are for the most part worse than large employers.) The existence of the employer-size requirement in this proposed regulation gives away what it really is — legislation through regulation.

    We also should consider how OSHA typically conceives of workplace safety and hazard abatement. The principal method of control is expected to be engineering controls, or environmental controls — i.e. removal of the hazard itself, rather than applying some protective measure to the individual (e.g. PPE). If we see OSHA announce a standard that ignores the hierarchy of controls — for instance, if there is no recommendation on ventilation — that will be pretty good evidence that OSHA isn’t being used for its intended purpose. The same would be revealed if the standard did not take into account exposure risk (by, for example, exempting outdoor or remote workers) — in fact, absent exposure risk, the citations should be unenforceable. So there is a great deal of uncertainty with respect to legitimacy which can only be answered by the standard itself when we see it.

    Finally, it’s worth pointing out that there are other OSHA regulations that refer to vaccination — for example, OSHA’s bloodborne pathogens standard (1910.1030) requires employers to offer hepatitis vaccination to employees potentially exposed. To repeat — the requirement is to offer it. Not compel it.

    Thanks for this post.

    1. > we might consider what other OSHA standards do not apply to small employers

      If your company had 10 or fewer employees at all times during the last calendar year, you do not need to keep OSHA injury and illness records.

    2. You say ” Of course there is a risk of contracting COVID at work. ” But you can also contract it at the grocery store or playing with your niece on the living room floor. Vaccinated can and do get covid as well so sitting at church and chatting with someone who got vaccinated but is infected can give to you as well. And holding a gun to one’s head and calling it a choice seems to be an issue? I liked your comment but I am trying to understand better. And ignoring natural immunity that does provide lengthy immunity as is being seen over last months

  33. PSST:

    Today Denmark REMOVED all covid restrictions, including covid passport requirements.

    Everything is now back to normal.

    But we need a crisis going here in the US in order to punish conservatives.

    1. If we can’t punish conservatives, what was the point of the culture war?

    2. Denmark is 74% vaccinated, one of the highest rates in the world. They deserve to go back to normal.

      Whereas we still have some work to do.

    3. How the fuck does anything Biden announced “punish conservatives”? Vaccination is not a “punishment.” It is one of the greatest scientific advances of all time.

  34. Psst:

    Sweden never shut down and is free. Their death rate is comparable to any first world country.

    Little, tiny, feminist controlled Sweden.

    1. Sweden’s per capita death rate is three times higher than Denmark, and ten times higher than Finland and Norway.

      https://www.businessinsider.com/sweden-covid-no-lockdown-strategy-failed-higher-death-rate-2021-8

  35. I tend to agree with you. We have to work with the law we have and not the law many would like to have. The Constitution created a federal government of limited powers. Vaccines are more properly within the relm of the police power of state and local governments. If liberty means anything, it should be freedom from being compelled to have needles inserted into your arm to dispense foreign agents. I voluntarily vaccinated because i only have one kidney but i respect others right to decline to be vaccinated.

  36. We shall see what this looks like legally when it’s more developed, but thanks for the interesting read. Biden’s big gamble here is that the 80 million unvaccinated people he called out and is menacing are all Republican voters. How likely is that? I know people from all over the political spectrum who are not vaccinated and rightly regard it as a personal choice and feel strongly about it. There were about 153 million votes cast in the 2020 election, 80 million for Biden, 73 million for Trump. 80 million people is a whole lot of people to piss off. I’ll make no predictions on SCOTUS but happy to predict a one-term presidency for Biden.

  37. “Indeed, perhaps the best time to resolve this constitutional question would be after the pandemic concludes, and tempers cool.” Wow, now that’s really something. Going for the Nuremberg Standard of holding people accountable, long after the fact? Anne Frank has no comment, at this time.

  38. Wouldn’t the *best* time to address a constitutional harm be as close to when that harm occurs as possible? If people were being thrown in jail because of their religious affiliation would you advocate waiting ‘until tempers cool?’

    Come on, Josh. Love reading you but that’s incredibly weak stuff.

Please to post comments