Congress Didn’t Give OSHA Authority to Impose Vaccine Mandates

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The Occupational Safety and Health Administration (OSHA) is about to require 80 million working Americans to get vaccinated. You may be among them. There’s just one catch: OSHA lacks the legal authority to impose a vaccine mandate. Declaring that his patience was “wearing thin” with unvaccinated Americans, President Joe Biden on Sept. 9 announced that OSHA would require companies with at least 100 employees to mandate that workers either get vaccinated or submit to weekly COVID-19 tests. OSHA sent a draft mandate to the White House on Oct. 8. Once the White House completes its review, OSHA will issue the order. And then get sued. As we detail in our legal analysis, the courts will almost certainly strike down the OSHA vaccine mandate. Here are a few reasons why: * Congress did not place vaccines within OSHA’s purview. OSHA is establishing the vaccine mandate through an “emergency temporary standard.” This highly unusual process allows OSHA to bypass public notice and comment. Federal agencies, including OSHA, typically must submit major rules to public scrutiny before finalizing them Congress created OSHA to promote workplace safety. OSHA inspectors look for hazards that can potentially harm employees, such as improperly stored chemicals, inadequately lighted or ventilated workstations, or lack of protective equipment (e.g., gloves and hard hats). Vaccines against viruses are an entirely different form of protection and are beyond the scope of OSHA’s mandate. * * Congress tasked the Department of Health and Human Services with determining the safety, efficacy, and appropriate use of vaccines. Congress authorized the Food and Drug Administration to determine whether vaccines should be allowed in interstate commerce. It empowered the Centers for Disease Control and Prevention to recommend who should receive such vaccines. Both agencies are within HHS. OSHA resides in the Department of Labor. Congress has given neither OSHA nor the Labor Department authority over vaccines. Congress did not give HHS the authority to impose a general vaccine mandate. While HHS has regulatory jurisdiction over vaccines, it has no power to impose a general vaccine mandate. If it had, the president would have directed HHS to tell employers to require their workforces to be immunized. If Congress did not authorize the agency it empowered to regulate vaccines to mandate their use, OSHA—which has no such power—certainly lacks that authority. * If Congress meant to give an agency authority to issue a general vaccine mandate, it would have enacted a law conferring and defining that authority. If Congress had authorized a mandate, it would not have encrypted it and concealed it in an obscure subsection of the OSHA statute. Congress does not, as then-Supreme Court Justice Antonin Scalia wrote, “hide elephants in mouseholes.” In short, Congress has not given OSHA license to mandate COVID-19 vaccines. Lawmakers needn’t prohibit OSHA from imposing a mandate that they never authorized the agency to issue in the first place. On the contrary, if Congress wants a general vaccine mandate, it must pass a law establishing one.

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