On Jan. 7, the U.S. Supreme Court will review the legality of two emergency temporary standards from the Occupational Safety and Health Administration (OSHA) intended to control the workplace transmission of covid-19. The first standard, withdrawn this past December, combined several measures to protect health-care workers including mask mandates, routine testing, case reporting and ventilation. The second, informally called the Biden vaccine mandate, would compel private employers with 100 or more employees to require on-site personnel to receive the coronavirus vaccine or, alternatively, to wear masks and to assent to weekly coronavirus tests. These orders have provoked substantial opposition from the business community and Republican state officials, who accuse the Biden administration and OSHA of using the emergency temporary standard process to overstep the regulatory authority of the federal government and undermine the economic welfare of countless businesses.
The ongoing social and legal controversy over the vaccine mandate demonstrates how the reticence of agencies like OSHA to exercise their authority has diminished their ability to safeguard our society. Ever since President Richard M. Nixon signed the Occupational Safety and Health Act of 1970 into law, OSHA has confronted resistance from advocates of free enterprise. This pressure steadily intensified over the course of the Ford, Carter and Reagan administrations and discouraged OSHA from passing new emergency standards. This policy of regulatory restraint unfortunately has not made the task of defending the vaccine mandate any easier.
The purpose of the law was straightforward: to reduce the “lost production, wage loss, medical expenses, and disability compensation payments” resulting from the “injuries and illnesses arising out of work situations.” The final law reflected years of painful compromises between labor and industry and tried to consolidate the dense network of voluntary standards and state and local laws governing occupational safety. Free-market critics quickly singled out OSHA as overburdening American companies with red tape and heavy-handed enforcement. Over its first two decades, the agency strained to meet relentless demands for deregulation, agreeing to incorporate cost-benefit analyses into its procedures, to accommodate small businesses with various exemptions and to cut down on required paperwork. The Reagan administration rejected these concessions and fought to close OSHA entirely as part of its broader campaign against bureaucracy.
This sustained political onslaught has caused OSHA to rely heavily on nonbinding guidelines and voluntary compliance with federal regulations to keep workers safe. The agency usually avoids controversy and emphasizes good-faith collaboration between employers and government officials over penalizing corporate misconduct. Although this approach enables OSHA to perform its regular duties without adequate staff, resources or public support, implicitly trusting businesses to protect their employees from covid has produced some disturbing results.