Former state AG: OSHA’s COVID vaccine mandate was too broad


The U.S. Supreme Court has issued its ruling on President Joe Biden’s vaccine mandates, ruling against one and, at the same time, in favor of another.

State Board of Health will not yet make a decision to require COVID vaccine for students

“They dealt with two different vaccine orders that were being implemented by two different agencies of state government,” explained Rob McKenna, former state attorney general. “The first — and the mandate that would have affected the largest number of employees, around 84 million private company employees in fact — was the OSHA mandate. So it was a mandate imposed as a matter of workplace safety on all employers of 100 employees or more.”

“The second mandate will be enforced by the secretary of health on health care providers that receive Medicaid and Medicare funds,” he continued. “So two different agencies, which means two different statutes governing those agencies and giving them their powers.”

The key test, as McKenna explains, is whether or not the rulemaking agency has authority from Congress to implement the particular rule.

“What the Supreme Court emphasized with the health care worker mandate is that Congress has authorized the secretary of health to impose conditions on the receipt of Medicaid and Medicare funds that the secretary of health finds necessary in the interest of the health and safety of individuals who refer services, i.e. people who go to hospitals,” he said.

In that case, the rule “fits neatly” within the language of the statute “because ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession. First, do no harm.”

The court also noted that there are existing vaccine mandates for health care workers.

“Vaccination requirements, they say, are a common feature of the provision of health care in America,” McKenna said. “Health care workers around the country are ordinarily required to be vaccinated for diseases such as hepatitis B, influenza, measles, mumps, rubella.”

For the other mandate, enforced by the Occupational Safety and Health Act (OSHA), the court determined that OSHA empowers the secretary of labor to set workplace safety standards, “not broad public health measures.”

“That’s why, when you look at the act, its provisions typically address hazards that employees face at work,” McKenna said. “But no provision of the act, the court says, addresses public health more generally. Public health more generally falls outside of OSHA’s sphere of expertise.”

So, even though COVID-19 is a risk in many workplaces, the court declared that it’s not an occupational hazard in most.

“They said COVID-19 spreads at home, in schools, during sporting events, everywhere that people gather together — and that kind of  ‘universal risk’ is no different from the day to day dangers that all of us face from crime, air pollution, or any number of communicable diseases,” McKenna explained. “So they conclude permitting OSHA to regulate the hazards of daily life simply because most Americans have jobs and face the same risks while they’re on the clock that they do at home would significantly expand OSHA’s regulatory authority without clear Congressional authorization.”

The vaccine mandate from OSHA was very broad and didn’t make distinction for types of workplace. What the court calls OSHA’s “indiscriminate approach” doesn’t account for a difference between occupational risk and general risk, McKenna explained.

As far as McKenna is aware, employers can still choose to mandate vaccination.

“That’s yet another government agency that regulates employment practices,” he said. “And that agency came out very early on in the pandemic and said employers can mandate vaccination if they choose to do so.”

“To be clear, OSHA can mandate it for every worker, too, if Congress clearly authorized OSHA to do so,” he added. “But Congress hasn’t done that.”

Impact of ruling in Washington state

A prominent Seattle workers’ rights attorney told KIRO Newsradio that he does not think the high court’s ruling Thursday will have a huge impact locally.

Timothy Emery believes most employers — and even state agencies — are being flexible with exemptions.

“A lot of employees have a lot of individual circumstances that don’t fit within a bright line test,” he said.

“There’s a lot of lip service to these bright line policies,” he added. “But where the rubber meets the road, there’s still a lot of personal freedom and choice available in the system.”

Emery says many workers who aren’t granted religious or medical exemptions are either working remotely or have been offered other accommodations.

“By and large, anyone who has not wanted to get a vaccine simply hasn’t gotten a vaccine,” Emery said.

To be clear, he does recognize that people have been fired over the COVID-19 vaccine mandates, but his office is just not seeing that happen on a large scale.

Listen to Seattle’s Morning News with Dave Ross and Colleen O’Brien weekday mornings from 5 – 9 a.m. on KIRO Newsradio, 97.3 FM. Subscribe to the podcast here.

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