DANIEL VAUGHAN: The devil is in the details of Biden’s vaccine mandate

President Joe Biden’s announcement of a vaccine mandate set off a flurry of reactions across the political spectrum, from people defending to Republican states declaring they’d challenge it. I don’t doubt the mandate will get fought in the courts, with governors, legislatures, and others saying they won’t enforce it.

The question is whether the Biden administration can deliver on a mandate, whether legally or literally.

Biden’s speech and the plan his White House laid out has a mandate that requires vaccines or weekly testing. However, The Wall Street Journal is already reporting that testing companies are warning this new demand on tests could end up not being met. Anyone who has tried to get a test recently can attest, it’s not an easy task.

Some of the experts cited in the Wall Street Journal report were very blunt. “We do not have enough capacity and supply of rapid antigen tests to meet the onslaught of demand,” said Mara Aspinall, co-founder of the Biomedical Diagnostics program at Arizona State University.”

Others added, “Our inquiries jumped 200% overnight, and it’s only going up,” said Leo Friedman, CEO and founder of iPromo LLC, a company that sources merchandise, including antigen tests and personal protective equipment. “You’re not solving this with the manufacturers you have now.”

This shortage is happening before a single word of the mandate has gone out. There’s no shortage of vaccines available at the moment. But what happens with the mandate requirements when a business cannot locate a test to give to employees who refuse a vaccine? Any mandate has to allow leeway for employers who can’t fulfill obligations because the federal government has made it harder to locate tests.

After that, there are legal challenges. It’s hard to pin down how and why the mandate will get challenged, but there’s little doubt those are coming.

The Biden White House intends to send out this rule from the Labor Department via the Occupational Safety and Health Administration act of 1970 (OSHA). More specifically, OSHA allows for “emergency temporary standards” (ETS) to be set in place to cover crises where there’s an immediate need for direct OSHA input.

To prove that, the law requires to demonstrate two things, “(A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.”

The key phrase there is “grave danger,” and all the litigation will orbit whether or not the Biden administration and its Labor Department can prove the grave danger standard. It’s not an easy question because OSHA issues ETS so infrequently. In fact, outside COVID-19, the last ETS from OSHA was in 1983.

The ETS, in that case, dealt with asbestos, and the Labor Department lost that case where OSHA tried claiming they needed to issue an ETS to protect 80 employees from asbestos exposure. 

The Congressional Research Service observed, “[A]lthough the federal courts have ruled on challenges to previous ETS promulgations, the courts have provided no clear guidance as to what constitutes a grave danger. In 1984, the U.S. Court of Appeals for the Fifth Circuit in Asbestos Info. Ass’n v. OSHA issued a stay and invalidated OSHA’s November 1983 ETS lowering the permissible exposure limit for asbestos in the workplace.”

Unquestionably, COVID-19 poses a danger; the question is whether it’s a grave danger that requires an ETS. Further, other fundamental questions remain too.

Do the OSHA statutes allow for OSHA rules surrounding things like viruses? That is unclear. OSHA has typically dealt with workplace hazards, toxins, and other elements — like asbestos or lead. It’s not hard to say that a virus is included, but a court would have to say that affirmatively.

Finally, there’s the essence of the mandate itself. It’s easy to say that OSHA could mandate access to things like vaccines or testings by employers. It’s likely unquestionable that OSHA could require vaccines drives by employers. The ultimate mystery is whether or not OSHA can mandate an employee to take action. Can OSHA force vaccines or tests in any situation?

Do these same regulations apply to people who have had COVID-19 and recovered from it? Natural immunity should count if a person can prove that they have that kind of immunity.

Everything is an open question at this point. It’s hard to say whether a mandate stands up legally because all we have is Biden’s promise of a mandate and none of the details. And with this kind of mandate, the details matter.

We’re talking about impacting tens of millions of employees and an untold number of employers. The details matter and cannot get taken for granted.

It’s not enough to say you want a mandate; you have to lay out how to enforce it. So far, in the Biden administration, they’ve failed on this exact point. Afghanistan is only the latest example. The Biden administration was overmatched on every detail and continually unprepared for things they should have foreseen.

The Biden administration had better hope it’s better on the details this time because its capacity to survive a legal challenge will hinge almost exclusively on that one point.