Just as pandemic fatigue is setting in and the Omicron variant is sweeping across the nation—putting a tremendous strain on America’s labor force—the Supreme Court ruled against a key effort of President Biden to combat COVID-19. Here, labor law expert William Gould IV discusses challenges to the Occupational Safety and Health Administration’s (OSHA) vaccine mandates—and trends in the American labor market during the pandemic.
What are your thoughts on the Supreme Court’s decision this week, against OSHA’s mandates?
With this ruling, a majority of the Supreme Court has arrogated to itself the role of workplace health and safety experts in invalidating the modest Biden OSHA COVID-19 vaccine and testing rule. OSHA expressed Congressional intent to regulate infectious diseases and other perils, which exist in and outside the workplace. As the dissent against this extraordinary judicial activism of 6 justices so eloquently notes, Congress granted the authority to the agency to whom the Court should have properly deferred. Indeed, in Biden v Missouri, where healthcare vaccinations were upheld in a 5-4 decision, the anti-vaxxer dissenters similarly would have substituted their “wisdom” for that of the agency in which President Biden and Congress reposed trust. A more ignominious performance in the midst of the greatest challenge in generations has not been seen since President Roosevelt faced the Nine Old Men of the Supreme Court appointed prior to his inauguration who, like the Court that President Biden confronts, similarly substituted their expertise for that of the people’s representatives.
While OSHA states that it intends to proceed with an infectious disease rule—it has regulated infectious diseases in the past—its ability to do so has been impaired if not crushed by this week’s 6-to-3 ruling from the Supreme Court.
Can you give us some background on the OSHA case that has gotten so much attention, National Federation of Independent Business v. Department of Labor?
This case arises out of the so-called occupational safety and health act of 1970, enacted by Congress to assure safe and healthful working conditions for the nation’s workforce and to preserve the nation’s human resources. It’s been on the books now for 52 years. It gives the authority to the Secretary of Labor to promulgate standards and, in some circumstances, to fashion so-called emergency temporary standards. Those are what have been employed in this case to address some of the problems that have emerged from the pandemic.
The Secretary proposed standards that would require employers who employ 100 or more workers to either vaccinate or, with regard to those who remain unvaccinated, to insist upon protective gear in the form of masks and to provide for regular testing for those workers.
Have mandates like this been issued before?
This is not the first time that OSHA has ventured into this realm. It has undertaken three major initiatives in the past. One was at the time of the HIV crisis when it provided for regulation of so-called blood pathogens, with regard to HIV, hepatitis B and hepatitis C. It also provided rules, which have, for example, imposed requirements for employers to allow workers to have their own drinking cups and drinking facility so that they don’t share with one another and don’t promote the possibility of infectious disease. That was done in construction. And in the area of agriculture, they also devised rules designed to protect workers against dust and heat.
What these rules all have in common, including the one that the Court just struck down, is that they deal with the problems of infectious diseases and they deal with problems that arise both out of the workplace and in the workplace. I mention that because in the discussion and the oral argument, and during the Trump administration that preceded the Biden administration, much of the attention was focused upon what is unique to the workplace—and that OSHA only had jurisdiction in that area.
This looks like the kind of thing that OSHA typically does just keeping the workplace safe. But other people seem to think it’s overreach because they’re delving into medical issues. Do you think that OSHA has the authority to issue this kind of mandate?
I think that OSHA has the authority to do it. This is the first time, however, that OSHA has been presented with a problem quite like this. A wide variety of arguments have been put forward to say that OSHA does not have the authority. Chief Justice Roberts noted in oral argument that this problem didn’t exist in 1970 when the statute was passed. Well, of course, we know that all kinds of problems don’t exist at the time when statutes are passed. That’s why we have to have agencies and courts and lawyers and law professors to address changing circumstances—acknowledging that we have new problems that pose new challenges to statutory interpretation.
We’re used to the authorities doing all sorts of things to restrict our freedom, particularly during the pandemic. Most of us accept those restrictions, some of us chaff against them. But there is a difference between the states saying this, I take it, and the federal government.
Yes. So that’s one of the first things that Chief Justice Roberts in particular mentioned at the beginning of the oral argument when he said, look, this is really within the police power of the states. But the Supreme Court as early as 1905 upheld Massachusetts’ as authority to vaccinate its residents over objectors there. And they didn’t say anything about precluding the federal government. And, of course, this is clearly something that affects the entire nation.
The other point that has been made is that Congress should have spoken explicitly about this. Well, when we deal with employment statutes, Congress isn’t always in a position to speak explicitly. The question is largely one of who has the expertise, and in what manner did Congress intend to have this responsibility discharged.
In fact, looking back at HIV mandates, Congress explicitly authorized OSHA’s involvement with infectious diseases and even expressed dissatisfaction with OSHA’S tardiness in fashioning rules. And Congress said if you don’t do this, we’re going to by law impose the proposed rules. This is not something that is new, although it is an unprecedented challenge.
There are a set of arguments about potential overreach on the part of OSHA. What are some of the business community’s objections to this why don’t they want to do it?
Well, as manifested in their arguments, I think it takes a number of different forms. One is what they call “what aboutisim.” The justices said that this is something that really isn’t out of the ordinary, that the emergency rule requirement says that the threat must be grave and that the proposed rule must be necessary. Justice Gorsuch’s line of questioning seemed to suggest that COVID-19 is not something that’s all that unusual. If you look at the Court of Appeals for the Fifth Circuit, which was the first circuit to have a bite at this, they tended to downplay it too.
Another part, of course, is they questioned the number— ‘why did you pick 100 employees?’ But this is an arbitrary figure in the OSHA mandate. And Congress has picked numbers of employees in other situations, such as for Title VII and The Family Medical Leave Act of 1993. The justices also said in oral argument that there are a lot of workers who are unvaccinated who are less likely to die than the people who are vaccinated. Look at the over 65 who are vaccinated as opposed to some of these young people between 18 to 24 who are unvaccinated. You should have done it on the basis of age. But that fails to take into account, of course, the fact that there are all these people, no matter what threat the disease poses, who carry this virus and transmit it to others.
Aren’t big companies regulating for themselves anyway?
You know, Tyson has negotiated a collective bargaining agreement with United Food and Commercial Workers imposing vaccination, as has AT&T, Boeing, and a number of major companies. So large companies in the fortune 500 have gone ahead on their own to require vaccinations. The Houston Medical Hospital, where the first round of litigation took place, also imposed vaccination—and were exhibit number one in the argument for OSHA because very few people resigned because of the requirement of vaccination.
So that’s the big concern for employers—that staff will resign if forced to vaccinate?
Oh yes. And that looms large, at least in the appendices and the exhibits that have been filed in these cases…that we’re not going to be able to function effectively because we’re going to lose our workers. But I don’t think many of the big companies filed amici. That’s the position of the states that are hostile to President Biden, and about half the states of the Union signed on to a brief challenging this rule.
So, one of the reasons the employers are so worried about vaccine mandates is that they are afraid of losing workers and that fits into a bigger trend going on during the pandemic, doesn’t it? With respect to what people are calling the great resignation, where people are reportedly leaving their jobs in large numbers. What do you make of that?
Well, I think that the great resignation, as it has come to be called, does fit into this. Workers are increasingly dissatisfied and increasingly hesitant about taking up particular kinds of work. And this hesitancy has been expressed on behalf of and by so called essential workers, workers who have been involved on the front lines of the pandemic. Here we’re speaking of workers in medical facilities for instance, who are part of the other Supreme Court case that involved the government’s authority to require vaccination amongst employees of medical facilities who have contact with patients.
But essential workers are now more widely understood to be a broad category—including employees who have a lot of contact with the public and also those who have been traditionally unorganized and unrepresented, so more vulnerable not only in terms of their exposure to the virus, but also more vulnerable in the workplace, generally, where they are so called marginalized workers who have had very little union representation. And we see now the unions are attempting, in some measure, to either organize such workers or to represent them more effectively, particularly here in California, where the food and commercial workers, for instance, have proposed legislation that provides for various protections for workers in groceries and supermarkets. So not only first protectors such as EMT, police, and fire, but also bus drivers and nursing home attendants and the like.
We are familiar with unionized workers walking out in an organized way to protest conditions, but here it seems like workers across the spectrum, particularly the lower paid, are saying we’re not getting enough of the spoils and it’s just not worth it for us to show up to continue this job.
I think that’s true. Of course, it’s been more possible in this particular moment to find alternate employment, and sometimes even when it isn’t, the workers are choosing to leave anyway and rely on their savings and that of their spouses or partners to tide them over in this challenging period. There is a general shifting, but how long it will last we don’t know. But it is a shift in power towards workers away from capital.
It’s almost as if it’s a kind of disorganized labor protest where workers aren’t unionized but, nevertheless, they’re pushing back. Do you think that this is mainly due to fear of getting COVID? Or is it more that COVID has changed people’s perspective and they’re saying life is too short to put up with a lousy job?
I think it’s primarily to do with two things. One is the fear of the virus and the other is the possibility of alternative employment, given the general shortage of labor. You know, I walked into an establishment here in Palo Alto the other day and was told that they had to shut down in the middle of the day because they didn’t have enough employees to run the business. We’re seeing that across the country. So, it’s a combination of those two factors. The big unanswered question is whether unions will be able to make gains. They’ve been in a period of substantial decline for years. They had a little bit of a bump in the past year, but whether they’ll be able to gain some measure of revival from this new phenomenon is unclear.
People realize how valuable labor is as soon as you don’t have it. Coming back to the Supreme Court cases, are you surprised by the ruling?
I’m not surprised that the employers won this case—and OSHA didn’t prevail. I think the majority of the justices, with this new conservative majority, were for the most part very much impressed with the arguments that the employers made. I predicted a six-to-three vote. But I would have thought because the oral argument was so one sided, with OSHA’s case so strong, they would have thought about the politics of it—that the conservative majority would have hesitated because, quite frankly, a ruling against OSHA deprives the President of the one modest initiative that he’s been able to make on a nationwide basis beyond speeches and it may not be politically wise for them. And this is an issue that the public understands very well and, I think, may not forget.
What are the implications for labor law in general with this decision?
I think this fits into a pattern that this Supreme Court has displayed in connection with handling a wide variety of labor cases. Three areas come to mind in particular. Remarkably this Court, again by a 6-3 vote in 2021 in the Cedar Nursery decision, held that a government rule providing union organizers access to private property is an unconstitutional taking—even though government was for more than a century providing access for other purposes. A second is the Janus case three years ago in which the Supreme Court came up with this new idea of “compelled speech,” saying that workers who are required to pay union dues were being unconstitutionally deprived of their speech and being compelled to speak in the way the union compelled them to speak. It was a new concept entirely and one that had never been heard of outside of a few religious cases. The third is the Federal Arbitration Act of 1925, which really the Supreme Court has used to deprive workers of the ability to use most employment law cases—discrimination, wrongful discharge, and many others—even though Congress, when they enacted that statute in 1925, never focused one iota on employment laws because they weren’t there! They didn’t exist yet. It’s an unfortunate trend.
William B. Gould IV, the Charles A. Beardsley Professor of Law, Emeritus, at Stanford Law School, is a prolific scholar of labor and discrimination law who has been an influential voice in worker–management relations for more than fifty years. He is a prolific scholar whose most recent book For Labor to Build Upon: Wars, Depression and Pandemic (Cambridge University Press), will be published in April, 2022. Gould served as chairman of the National Labor Relations Board (NLRB, 1994–98) and subsequently served as chairman of the California Agricultural Labor Relations Board (2014-2017). He has been a member of the National Academy of Arbitrators since 1970. Early in his career, he served as a consultant to the EEOC and lead counsel on key employment discrimination cases. Gould was recently appointed by San Francisco Mayor London N. Breed to oversee an independent and comprehensive review of the city’s workplace policies and practices with a focus on claims of bias, harassment, discrimination, and retaliation.