DANIEL VAUGHAN: Biden’s vaccine mandate sits on shaky ground

President Joe Biden’s vaccine mandate has finally arrived, or at least the text of it has shown up.

The actual enforcement of the mandate will not go into effect until Jan. 4, 2022, which sort of undercuts any notion that the Biden administration believes this is a real emergency. And the broader question is this: what matters more at this stage, the mandate or the ongoing supply-chain crisis?

The delay in implementation of the mandate was done to give businesses time to handle the Christmastime rush, and push everything into next year. CNBC reports: “Business groups had called for the administration to delay the mandate until after the busy holiday season, worried that workers would choose to quit rather than follow the rules, further disrupting already strained supply chains and a tight labor market.”

After taking months even to scrape together the text of the rule, the Biden administration obliged those business groups. Though you might forgive them for the delay, the actual OSHA rule package is an astonishing 490 pages long, which includes all summaries and legal arguments for their position.

As I wrote in the aftermath of Biden’s announcement of the mandate, the critical part of any mandate text would be the text and how they decided to implement it. The problem, as I pointed out several weeks later when Biden had failed to produce a mandate, is that the delay by the Biden administration, combined now with the administration punting it to 2022, undermines the legal authority OSHA has to issue such rules.

As attorney Dan McLaughlin notes at National Review, OSHA’s legal authority to issue these emergency rules requires them to act with speed and for the rules to take immediate effect. The key phrase he highlights says, “The Secretary must issue an ETS in situations where employees are exposed to a ‘grave danger’ and immediate action is necessary to protect those employees from such danger.”

Nothing about this mandate is immediate. The Biden administration delayed in releasing rule language, and it’s saying, implicitly, this isn’t an immediate issue if concerns over the supply chain can trump “grave danger” risks from COVID-19.

OSHA cannot argue that COVID-19 is a grave danger with one breath but then talk about the need to slow down the implementation of an “emergency order” with the next.

Further, the mandate itself isn’t a full mandate. The OSHA orders push for mandated vaccines but also allow an opt-out. If an employee doesn’t want to get vaccinated, they must submit to weekly testing and mandated masking requirements.

The business doesn’t have to pay the costs of testing and mask requirements, either, which undercuts the notion that employers are responsible for providing a safe workplace environment.

If this truly is a grave danger, and OSHA describes in great detail within the 490 pages all the various hazards to employees that COVID-19 poses, then why is OSHA not focusing on ensuring complete safety? Either this is a grave danger requiring immediate action, or it’s not. And all internal indications of OSHA’s own documentation say that full vaccination is the only path towards proper workplace safety.

In providing an out to achieve better legality, OSHA is undercutting their own safety arguments. Combine that observation with the timing, and nothing OSHA is doing makes sense.

As Jim Geraghty at National Review sarcastically notes, “It’s just reassuring to know that the grave danger that requires this emergency vaccine mandate won’t arrive until the first week of January. That virus is awfully courteous, to hold off until after the holidays!”

The lawsuits have already begun around the mandate, with the Fifth Circuit in New Orleans already issuing an emergency injunction against the OSHA regulations going into effect, as The Wall Street Journal reported.

More hearings will take place over whether that injunction should take on a more permanent feature. Meanwhile, other related lawsuits are pending in the Sixth, Eighth, and Eleventh Circuits, with the potential for other states to join in the fray.

Emergency OSHA mandates do not have a good track record before any appeals courts in the United States. And given the internal incoherency of these OSHA mandates, and the slip-shod manner it’s being implemented, I wouldn’t have high hopes of this mandate surviving judicial review in anything other than the most partisan judicial setting.

However, perhaps the most impactful evidence against the mandate is that it’s unclear what problem it’s trying to solve. 

According to the CDC, as of Nov. 7, 2021: More than 70% of the adult population is fully vaccinated, and nearly 86% of the 65 and above category is fully vaccinated. If you expand that to partial vaccinations, more than 80% of the adult population has partial immunization. More than 98% of the 65 and older crowd has had a shot.

Judging by those numbers, Americans have already taken precautions, and it’s unclear why the government has a role here in creating new problems for employers. That’s especially true at a moment when the supply chain crisis is real, the lack of employees is real, and inflation continues to grow.

At some point, COVID-19 is an endemic virus that we deal with like any other virus or disease. It’s unclear if the Biden administration has realized that yet.