SCOTUS and the OSHA Vaccine Mandate

Installment #1: The Wonky

Yesterday, SCOTUS heard oral arguments in two separate cases concerning the federal government's claim of legal authority to require large employers and most healthcare facilities to have their employees vaccinated against COVID-19.?This post offers no opinion on the legal merits of the cases that were presented. Legal minds on both sides of the argument have provided plenty of that already.

Nevertheless, there was a key takeaway: questions posed by justices from the conservative majority suggest that the court may soon enjoin OSHA's enforcement of its presumptive workplace 'vaccination-or-testing' mandate for private employers with more than 100 employees. Perhaps as soon as this week. The implications for professionals in HR and employee benefits are many.

With Omicron still raging, this feels like an important intersection on the road to recovery, and an appropriate time to ask if the road taken could have been paved a bit more smoothly for private employers this past fall.?Are there any lessons to be learned?

I will offer one: always beware the unintended consequences of a policy born of frustration.

Back on September 9th, President Biden -- visibly and understandably frustrated with the nation’s poor vaccination rate as the deadly Delta variant was starting to peak -- announced his intention to have federal regulatory agencies issue rules to mandate vaccination for most of the country’s workforce.?This came despite his many earlier assurances to the contrary, and presumably against his own political instinct that a heavier hand from Washington might prove more hindrance than help -- a lightning rod that might unify those in opposition to employer mandates and forestall the larger goal of getting more shots into arms.

The administration's shift in approach was entirely well-intended as a matter of public health policy. There can be no serious debate about the efficacy of mandates in tamping down dangerous communicable diseases.?We eradicated smallpox this way. The intent was entirely good and honest.

Nevertheless, there was a certain loss of credibility, and there were fears expressed at the time that new rulemaking would only cause us to ‘lose time to the virus’. Government agencies, in contrast to undivided legislatures (think 9/11) are simply incapable of truly rapid movement.??This is normally a good thing – our rulemaking benefits from deliberation and public comment.?It was precisely the speed that our federal agencies lack that was most needed in early September.

Fears of being a day late have proven prescient.?OSHA took almost three months to draft its emergency rules.?Lawsuits from several states were threatened before the president even stepped away from the podium on September 9. Delay was inevitable.?There was no hope of an OSHA ETS being implemented before the Delta variant had done its damage.?It may not be enforced while we are dealing with Omicron either – or perhaps ever.

In fact, several commentators are already suggesting that the less virulent and more transmissible Omicron variant makes the employer mandate 'moot' -- though I suspect that there is a cadre of exhausted healthcare heroes who would disagree with that conclusion.

It’s a stark reminder:?sound public health policy (which mandates are) and effective federal regulatory intervention (which the OSHA ETS has not been so far) are not always one and the same.

Would the Road Not Taken Have Gotten Us Further Along the Road to Recovery?

This post is not intended as any sort of normative statement on the rightful place for government in regulating business. LinkedIn is not a platform for political science debates. My observations are limited to whether or not the policy pursued has been maximally effective, and how learnings might inform our future decision making.

In that spirit, here are some key questions:

1. Did the administration's shift in policy have the unintended consequence of delaying the vaccination progress that businesses were making, or prepared to make, on their own last fall?
2. Had the federal government thrown all of its weight behind those private employers already leaning towards their own mandates -- without taking time to craft entirely new rules -- would we be further down the road to recovery today?
3. Did the timing of the policy have the unintended consequence of stalling progress in an area that was already tilting heavily toward mandates among many of the nation's most influential businesses and leaders?
4. And finally, has the Biden administration also now inadvertently handed a conservative supreme court a cudgel for limiting regulatory rulemaking across the board -- not only in fighting the pandemic, not only in the arena of workplace saftey, but perhaps in fighting climate change too?

Maybe. It's certainly worth asking those questions.

Recall that some of the nation’s largest employers had already imposed mandates before the new policy was announced. Tyson Foods announced theirs on August 1st for 120,000 workers (mostly working in ‘red states’) – along with a $200 vaccine incentive. It created no storm of national protest or wave of lawsuits from state attorneys general.

The action Tyson took was risky.?Agency regulations still conflicted and key inter-agency questions went unanswered at that time.

The action Tyson took was also highly effective. All but a very small number in the Tyson workforce got vaccinated.

Many other large employers were already following suit, or preparing to do so, in early September. Legally it was entirely in their right, if deemed to be in the best interest of their business, to do so. No court of ultimate authority has ever ruled against such private action.

I don't think it can be denied that the announcement that an OSHA ETS would be forthcoming knocked backwards several of these efforts. Many large employers were either delayed or forced to ‘stop and restart’ their mandate and/or surcharge initiatives – and it's hard not to wonder if this wasn't mostly due to direct federal intervention coming so late in the summer, and then taking so long to formulate and communicate.

Meanwhile, our societal divisions only simmered and deepened.

It also cannot be denied that the mandate created deeper fault lines in those societal divisions -- rightly or wrongly, understandably or not. Surveys indicate that on the day that the president spoke, 46% of those surveyed opposed mandates in the workplace. Today that number is 51%. Making the bogeyman 'government overreach' has distracted us and created less focus on the pandemic itself. This stands in contrast to the opposition to mandates imposed by private corporations, which was more muted and diffuse. All self-regulated mandates like Tyson's have ultimately been accepted by an overwhelming majority of workers (however grudgingly by some).

Alternatively, it could be argued that the shift in policy was exactly what many pro-mandate or neutral CEOs in private enterprise were seeking. They wanted 'cover' to act (i.e. someone else to blame) as well as assurances that they would be on a level playing field with their competition in terms of available labor. But if the OSHA ETS never goes into effect, it will be hard to see how this approach has played out that way. And that might have been exactly President Biden's original calculus when he first announced that he saw no place at the federal level for vaccine mandates or passports. Frustration overruled that calculus.

Next time, if there ever is a next time, a more nimble approach in the private sector may be needed. That might include ensuring crystal clarity on what employers can and cannot do without fear of legal jeopardy – and providing that clarity months earlier; it might include providing employers with an expanded set of permissible choices around their vaccination programs – including better templates and direct assistance with logistical issues and recordkeeping, as opposed to one-size-fits-all directives from above -- directives that have left HR and employee benefits professionals scrambling to figure things out all over again; it might also include permission to offer much more substantive wellness incentives (free stuff) and healthcare premium disincentives (surcharges) on a temporary emergency basis much earlier in the crisis; and it would certainly include a more robust toolkit to help employers manage the complex behavioral science that contributes to vaccine hesitancy.

Those may be lessons learned - I don't actually know. It may also be just plain old wishful thinking that we'll be further along the Road to Recovery by this time the next time. For now, I'm just hoping there never is a next time around! Enjoy your weekend.