OSHA’s Vaccine Mandate Overkill

The 490-page Biden rule is unnecessary and needlessly divisive

WSJ editorial.

"Covid cases and hospitalization have blessedly plunged since the summer Delta surge as more Americans have been vaccinated or acquired natural immunity. Yet the Biden Administration is still fighting the last virus war, and on Thursday rolled out its worker vaccine mandate, which will likely do more harm than good.

The Occupational Safety and Health Administration’s “emergency temporary standard” requires companies with 100 or more employees to mandate that workers get vaccinated, or tested weekly and wear a face mask. Separately, the Centers for Medicare and Medicaid Services issued a vaccine mandate for health-care facilities with no testing option.

President Biden directed the agencies to issue the mandates in September as his polling numbers flagged. Many large employers have already imposed mandates in anticipation of the OSHA rule, which will come into full force on Jan. 4. Many state and local governments have also mandated vaccines and testing for their workers and health-care facilities.

OSHA’s 490-page rule makes some concessions by exempting employees who work outdoors or remotely. Employers also won’t be required to pay for workers’ weekly testing, though OSHA suggests they may have to bargain with unions over this and other things.

“The National Labor Relations Act of 1935 (NLRA) protects the right of most private-sector employees to take collective action to improve their wages and working conditions,” OSHA says. So unions that oppose the vaccine and testing mandates could go on strike or demand additional remuneration for workers if their employer follows OSHA’s orders.

The mandate comes amid a historically tight labor market and could impel some workers to quit. According to a Kaiser Family Foundation survey last week, 37% of unvaccinated workers said they would leave if their employer required them to get a vaccine or be tested weekly. A quarter of all adults said they knew someone who has left a job because of a vaccine mandate.

OSHA acknowledges “that a vaccine mandate may result in increased employee turnover,” though it says “the net effect” will “be relatively small” given the testing option. But even if only 1% to 3% of workers leave because of the mandate, as OSHA projects, employers will struggle to replace them.

OSHA says employer benefits like lower worker absenteeism will offset their costs. Perhaps, but then why not let employers set their own policies rather than impose a one-size-fits-all rule that doesn’t account for different business considerations?

As for the rule’s public-health justification, increases in infections among the vaccinated make singling out the unvaccinated less supportable. Weekly testing is also no guarantee of contagion at workplaces since a worker can test negative one day and be positive the next.

The OSHA rule is also a dubious reach of federal power. As 24 GOP state Attorneys General explained in a September letter to Mr. Biden, OSHA is stretching its authority under the law because “emergency temporary standards” are supposed to be limited to “grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.” The law “deals with work-related hazards, not all hazards one might encounter anywhere in the world,” they note.

Vaccines have been a pandemic godsend. But the Administration’s unnecessary mandate is trampling state police powers, imposing new burdens on employers when they can least afford it, and making life harder for the unvaccinated who want to work in an economy with too few workers. He’s also courting a political counterreaction, as Tuesday’s election showed."