President Joe Biden’s new vaccine mandate that will compel private employers of more than 100 people to require COVID vaccination or weekly testing is sure to result in immediate litigation in federal court. It is likely to land with the Supreme Court soon after initial rulings by district and appeals courts.
Several legal theories may prove to be successful against the mandate. The focus of the challenges will be on how the administration has chosen to implement the mandate. Because Congress had no new act to operate under, a theory for authorizing the mandate had to come from existing law.
The White House chose to use the Occupational Safety and Health Administration (OSHA) to issue an “emergency rule” to implement the mandate in workplaces. Using the “emergency” process allows OSHA to bypass the usual regulatory requirements for a waiting period for public commentary and challenges before the rule goes into effect.
OSHA has used its emergency rulemaking power previously, with minimal success. There were six legal challenges to emergency rules between 1971 and 1983, and four were vacated or not allowed to go into effect. Those generally dealt with dangerous substances like asbestos, benzene, and pesticides. One was partially cleared, and only one was allowed to stand.
The law granting emergency rulemaking power to OSHA requires the agency to determine that employees face an imminent “grave danger” and that the proposed rule is immediately “necessary” to avoid the danger.
There has been litigation in which OSHA was found to have failed to prove a “grave danger” existed or that the rule was “necessary.” The U.S. 5th Circuit Court of Appeals found in 1984 that an emergency rule designed to lower asbestos exposure in the workplace could not be enforced. OSHA failed to provide adequate evidence that there was a “grave danger” because there was insufficient proof that immediately imposing the proposed rule would save the number of lives OSHA alleged.
In that case, the court also found that OSHA had failed to prove an emergency rule was “necessary.” The agency already required respirators in designated spaces where the danger of asbestos exposure was present. The court found that simply being concerned that a rule adopted through the normal process might not withstand a judicial challenge “hardly justifies resort” to the “dramatic weapon” of emergency rulemaking.
Walter Olsen from the Cato Institute says that the emergency rule process “regulates first, and asks questions later.” He says that the “grave danger” requirement is “vague and open-ended,” which always leaves emergency rules subject to legal challenges.
Olsen points out that because the proposed emergency rule applies to employees who work from home or have natural immunity through the previous infection, the ability of OSHA to prove a “grave danger” will be problematic.
The most exciting question in the short term will be how long it takes for the legal challenges that are certain to come to work their way up to the Supreme Court, where the Biden administration has not done very well lately.