Biden’s Authority to Mandate Vaccines Stems From Law Protecting Workers From ‘Grave Dangers’

Shiels Blog intro:

We are at a turning point: two great swirling political nebulae: 1. yes, more government (e.g. Biden) will protect progressive (worker, climate, environment, underserved, women’s autonomy/agency, stimulation of the economy by government Action v. 2. No, less government (Republicans’): free market, less State interference, less concern about government “climate science”, less affirmative action, limits to abortion, rejection of federal gun legislation. This administration, more than those of Obama and Clinton, appears pushed by elements of the Democratic Party to a truly Progressive experiment, perhaps helped by the Covid Plague, to attempt truly ambitious feats not seen since the 1960’s or 1930’s.

White House officials believe the law is a legitimate and legal way to combat the pandemic, though they acknowledge it has never been used to require vaccines.

President Biden’s assertion of far-reaching executive authority this week appeared to be on strong legal ground, experts said.
President Biden’s assertion of far-reaching executive authority this week appeared to be on strong legal ground, experts said.Credit…Al Drago for The New York Times
Michael D. Shear

By Michael D. ShearSept. 10, 2021Updated 1:41 p.m. ET

WASHINGTON — President Biden’s far-reaching assertion of presidential authority to require vaccines for 80 million American workers relies on a first-of-its-kind application of a 51-year-old law that grants the federal government the power to protect employees from “grave dangers” at the workplace.

White House officials believe the emergency authority provided by Congress under the Occupational Safety and Health Act of 1970 is a legitimate and legal way to combat the coronavirus pandemic. But they acknowledge that the law’s emergency provisions, which were employed in previous decades to protect workers from asbestos and other industrial dangers, have never been used to require a vaccine.

The novelty of the effort is at the heart of legal threats from Republican lawmakers, governors, pundits and others, many of whom vowed on Thursday to challenge the president’s use of the workplace rules. Senator Ted Cruz, Republican of Texas, called the Mr. Biden’s actions “utterly lawless.” Gov. Brian Kemp, Republican of Georgia, said the move “is blatantly unlawful, and Georgia will not stand for it.”

In a fund-raising email sent on Friday, Gov. Ron DeSantis of Florida, a Republican who has issued antimask orders, wrote, “Joe Biden has declared war on constitutional government, the rule of law, and the jobs and livelihoods of millions of Americans.”

But top aides to the president do not appear to be shaken by what they say was an expected response from those quarters. At a middle school in Washington on Friday morning, Mr. Biden responded to threats of lawsuits from his adversaries.

“Have at it,” he said.

And experts said the administration appeared to be on strong legal ground because it was relying on existing authority granted to the Occupational Safety and Health Administration by the legislative branch and supported by decades of judicial rulings.

“The OSHA Act gives employees a right to a safe and healthy workplace,” said Robert I. Field, a law professor at Drexel University. “Having a vaccinated work force is an essential component of having a safe and healthy workplace. Being exposed to a potentially deadly virus is neither safe nor healthy. So OSHA would have that authority.”

Mr. Biden’s call to use that authority was a sharp shift in tone and approach. Flinging aside the caution that has characterized his administration’s earlier tack toward vaccine mandates, the president said he would use the OSHA rules to require vaccines for as many as 80 million workers in private companies across the country, along with health care workers, teachers, federal employees, government contractors and more. Those who still refused would be required to submit to at least weekly testing to prove they were not infected.

For months, the president tried gentle persuasion. Anything more, the White House worried, would backfire in a polarized country where tens of millions of people viewed the Covid-19 vaccine as a political Rorschach test.

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But having declared himself out of patience with the unvaccinated, Mr. Biden is now testing the limits of government’s authority to compel personal health care decisions in the interests of confronting a pandemic.

“This is not about freedom, or personal choice,” he said Thursday. “It’s about protecting yourself and those around you.”

The argument may provoke exactly the kind of blowback Mr. Biden’s team worried about.

“Federal government mandates, of dubious legality, will further alienate the skeptical, undermine our institutions, and punish ordinary business owners and their employees,” Senator Patrick J. Toomey, a Pennsylvania Republican, said Friday.

But in a statement, White House officials said the president was “committed to pulling every lever possible” in the fight against the pandemic. The statement said, “The reason that the Department of Labor is able to take this critical step to protect Americans from Covid-19 is that Congress passed a law that requires the department to take action when it finds grave danger to workers.”

“This action is both clearly legal and needed to help save lives and stop the spread of Covid-19,” it said.

White House officials said that OSHA, an agency in the Labor Department, would draft an “emergency temporary standard” over the next several weeks that requires companies to take certain actions.

To impose an emergency standard, the law requires the administration to show that “workers face a hazard in the workplace that poses a grave danger to their health or safety.” They must also prove that the method being used to mitigate those dangers would be effective in keeping workers safe.

In the case of the Covid-19 vaccine, the administration will argue that the death and illness caused by the Delta variant of the coronavirus poses a “grave danger” to workers across the country, and that the vaccine is an extremely effective way of preventing severe illness, hospitalization and death.

Those arguments will likely be included as part of a preamble to the regulatory language that officials at OSHA and the Labor Department are drafting, according to a White House official, who spoke on the condition of anonymity to discuss regulations that are still under development.

Once the regulations are in place, OSHA will enforce them using the usual tools provided to the agency: They will collect reports of violations and will send inspectors out to businesses. And for those businesses that refuse to enact the rules, the agency can impose $13,600 fines for minor violations and $136,000 for major ones.

Kathryn Bakich, a senior vice president at Segal, an employee benefits consulting company, noted that “this is the first vaccine mandate ever applicable to private employers.” But she added that many employers were already “moving toward mandatory vaccination policies at great speed.”

Wendy K. Mariner, a professor emeritus of health law, ethics and human rights at the Boston University School of Public Health, said that the administration’s logic made legal sense.

“Employers have a duty of care to maintain a safe workplace under the Occupational Safety and Health Act,” she said. Given the transmissibility of the virus, she said “it is quite sensible to require vaccination (or testing/masking for those with contraindications to the vaccine; and accommodations for those with disabilities under the A.D.A.) to protect all employees, as well as customers, clients, and patients.”

In his remarks on Thursday, Mr. Biden said it would take weeks, if not longer, for many of his proposals to take full effect — a delay that has real-life consequences as the Delta variant of the virus fills hospitals with severely ill patients who had refused to be vaccinated. The president did not say why he waited until early September to take steps that many health care experts were calling for in July.

But one thing was clear: He is done with coddling, urging, persuading, pleading and even begging people to get vaccinated. Those without the shot are endangering everyone else, he said, preventing the country from putting the pandemic behind them once and for all.

“We cannot allow these actions to stand in the way of protecting the large majority of Americans who’ve done their part, and want to get back to life as normal,” he said.

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