There is a lot to dislike about the Supreme Court’s decision to invalidate the Biden administration’s requirement that workers either vaccinate against COVID-19 or test and mask at work.
The court’s party line ruling created limits on the Occupational Health and Safety Administration express authorization to protect employees from the “grave risk” of being exposed to “new hazards.” However, the conservative justices opted to use their judgment instead of the considered advice of public health officials. They issued a decision that, if not corrected, would leave millions of Americans at risk of serious workplace health hazards and could lead to thousands of unnecessary deaths.
Concerned Americans are right to question a court that would make such serious mistakes. It is correct for the Biden administration to do the same .. It must remember that it has a greater responsibility: to respond to the ruling in any legal way to protect American workers. Fortunately, the majority opinion in the case leaves open a surprisingly straightforward way for the administration to do just this.
Start with the actual rationale the court used to block OSHA’s vaccinate-or-mask requirement. The court didn’t dispute the fact that OSHA has the legal authority and the right to protect workers from the risks posed by the pandemic. It instead argued that OSHA swept too broadly by requiring employers to enforce what the court called a “vaccine mandate.” (In truth, OSHA’s emergency standard granted employers a choice between requiring all workers to vaccinate or requiring unvaccinated employees to undergo weekly testing and mask while at work).
The problem with OSHA’s vaccine mandate was that it was “strikingly different” from other workplace safety regulations. They said that they protect workers while at work ; and that vaccines can protect workers at work as well as outside of it. The majority thus decided that OSHA’s vaccine rule was impermissible because vaccines “cannot be undone at the end of the work day.”
High quality masks, though, can be taken off after work. Rapid tests can be done in minutes either at work or before. According to the conservative majority, OSHA would have the power to make workers wear a mask and test their eyes while they work. Such a rule would fix the court’s complaint about the prior OSHA order precisely because it would be limited to the workplace dangers posed by COVID-19, without extending further. Indeed, OSHA has already enacted medical exam and face covering requirements in other work contexts, further demonstrating that a test-and-mask rule would be firmly within the agency’s authority.
Some employers might balk at the idea of making all employees test every week and wear masks. However, employers who rightly recognize that vaccination is a powerful way to reduce the spread of the virus are well-informed. So OSHA’s new emergency rule should permit employers to waive the test-and-mask-while-at-work mandate for employees who choose to get vaccinated. (Nothing could prevent the vaccinated masking, which would increase their protection. )
In short, OSHA should reverse the order of its rule. OSHA’s new regulation would require employers to adopt a mandatory vaccine policy, but leave out employers who prefer to have workers test and then mask. OSHA’s exception would allow employers to waive this rule for only the vaccinated. You may feel that simply flipping the order of these requirements would be too clever by half. But if it seems that way, it’s only because the court’s opinion on Thursday was itself too clever. OSHA is allowed to protect workplace hazards by imposing requirements that also have the effect of protecting workers from similar hazards outside work. There’s nothing in relevant statutes that would prohibit it.
Indeed, reenacting OSHA’s COVID workplace safety rule as a mask-or-vax mandate would comport precisely with the conservative justices’ majority opinion. They admitted, for example, that “targeted regulations” that “account for [the] crucial distinction” between “occupational risk and risk more generally” would be “plainly permissible.” That is exactly what a rule requiring workers to mask only while at work would do. It is possible that employees will choose to test and wear masks while at work under a revised “mask-or-vax” rule. If given the choice of getting vaccinated or having to bear the burdens and inconveniences of daily masking and testing, most would choose the first.
Even if the rule has limited impact on testing and mask-wearing in workplaces across America, it would still be a significant public health improvement. Dozens of states do not currently require masks indoors despite ample evidence that masking saves lives and enjoy widespread public support. U.S. workers may have been dealt a serious and unjustified blow by the Supreme Court. The Biden administration has the ability to act quickly to protect workers in this critical moment.
Aaron Tang is a law professor at UC Davis and a former law clerk to Justice Sonia Sotomayor. @AaronTangLaw