The Biden administration on Thursday defended its vaccine rule to the Supreme Court, claiming opponents are wrong to call the policy a mandate.
Justice Department lawyers are contending with claims from red states, business groups, and religious organizations who say Congress has never empowered the executive branch to require vaccinations. The Biden administration denies the rule is a mandate, since it gives employers flexibility to choose between mandating vaccines or implementing a testing policy.
Victory for the administration in the Supreme Court would mean little from a political perspective. A lopsided majority of Americans oppose further mandates and restrictions to impede the Omicron variant, a grim political challenge President Joe Biden acknowledged at a Dec. 21 press conference.
"I know vaccination requirements are unpopular for many, not even popular for those who are anxious to get them," the president said. "My administration has put them in place not to control your life, but to save your life and the lives of others."
The Justice Department made a different argument in Thursday’s filing, going so far as to claim "the standard is not a ‘vaccine mandate.’"
"OSHA instead exercised its discretion to allow employers to choose whether to require employees to be vaccinated or to require unvaccinated employees to mask and test," Thursday’s filing reads, "because employers are best positioned to determine which approach will secure employee cooperation and protection."
The plaintiffs, and some lower court judges, say the rule is a mandate in function if not form. For example, employers must provide time off for vaccination and recovery, but no accommodations are offered for workers taking COVID tests. With testing scarcely available in many parts of the country, the consequences of that disparate treatment can be costly, especially for hourly workers in rural areas. Some 80 million workers are subject to the rule.
In general, the plaintiffs argue Congress has never authorized OSHA to impose a vaccine mandate on this scale. The agency’s chartering statute doesn’t contemplate such a step, they argue, and Congress would have been clear if they were assigning such authority to the agency, particularly since public health measures are mostly left to the states.
In Thursday’s filing, the government noted OSHA’s chartering statute empowers it to regulate dangerous "agents" or "new hazards" in the workplace, and they say COVID clearly fits that bill. They also pointed to a provision buried in Biden’s $2 trillion COVID stimulus bill that directs OSHA "to carry out COVID-19 related worker protection activities."
OSHA believes the rule will save 6,000 lives and prevent a quarter of a million hospitalizations. The justices will hear emergency arguments in the dispute during a special session next Friday.
OSHA and the White House are pressuring employers to come into compliance, the emergency appeal notwithstanding. The agency cut employers a minor break on Dec. 18 and announced that it will begin issuing noncompliance citations on Jan. 10, back from the original Jan. 3 deadline. Employers are required to determine and document the vaccination status of each worker and set policies for masking and regular testing of unvaccinated employees.
The administration has not said whether it will incorporate booster shots into its governing definition of "vaccinated" workers, and the sluggish pace of booster injections suggest that change could meet popular resistance. Some small business owners say new regulatory rules are unwelcome in an economic environment defined by inflation, staffing shortages, and supply chain disruptions.
"This mandate, if it takes effect, will be an onerous burden on small businesses that are already suffering from a near-record labor shortage," said Job Creators Network president Alfredo Ortiz. "Only 10 percent of small businesses are fully recovered from the pandemic, according to a JCN Foundation poll, and now Biden wants to add a new burden when we can least afford it."
The mandate’s unpopularity is coupled with growing doubts about the administration’s ability to manage the pandemic. After declaring "independence" from COVID in July, the White House is scrambling to meet soaring demand for tests and implementing relief measures it had sworn off for months, like extending the moratorium on student loan payments.
The case is No. 21A243 National Federation of Independent Business v. Department of Labor.