There is a lot to dislike about the Supreme Court’s decision to invalidate the Biden administration’s requirement that workers either vaccinate against COVID-19 or test and mask at work.
The court’s party-line ruling invented limits on the Occupational Health and Safety Administration’s express authority to “protect employees” from the “grave danger” of exposure to “new hazards.” The conservative justices substituted their own judgment for the considered expertise of public health officials. And in the end, they issued a decision that, if uncorrected, will leave millions of Americans exposed to grave workplace health risks and could result in thousands of needless deaths.
Concerned Americans are right to question a court that would make such serious mistakes. The Biden administration is right to do the same. But as it does, it must not lose sight of a greater obligation: the need to respond to the ruling in whatever way legally permissible to protect American workers. Fortunately, the majority opinion in the case leaves open a surprisingly straightforward way for the administration to do just this.
Start with the actual rationale the court used to block OSHA’s vaccinate-or-mask requirement. The court did not dispute that the agency has the legal authority to protect workers from the dangers posed by the pandemic. It instead argued that OSHA swept too broadly by requiring employers to enforce what the court called a “vaccine mandate.” (In truth, OSHA’s emergency standard granted employers a choice between requiring all workers to vaccinate or requiring unvaccinated employees to undergo weekly testing and mask while at work).
The problem the conservative justices found with the so-called vaccine mandate is that it was “strikingly unlike the workplace regulations that OSHA has typically imposed.” Other workplace safety regulations, they said, protect workers while they are at work; vaccines protect workers both at work and outside it, too. The majority thus decided that OSHA’s vaccine rule was impermissible because vaccines “cannot be undone at the end of the work day.”
High quality masks, though, can be taken off after work. And rapid tests can be conducted in just minutes at the start of work or beforehand. So on the conservative majority’s own terms, OSHA would be within its power to require workers to test and mask while at work. Such a rule would fix the court’s complaint about the prior OSHA order precisely because it would be limited to the workplace dangers posed by COVID-19, without extending further. Indeed, OSHA has already enacted medical exam and face covering requirements in other work contexts, further demonstrating that a test-and-mask rule would be firmly within the agency’s authority.
Of course, some employers may balk at the notion of compelling all of their workers to test weekly and wear masks, especially employers that rightly recognize the existence of a simple, proven alternative that also powerfully reduces the virus’s spread: vaccination. So OSHA’s new emergency rule should permit employers to waive the test-and-mask-while-at-work mandate for employees who choose to get vaccinated. (Nothing would prevent the vaccinated from masking as well, which would increase their protection.)
In other words, OSHA should rewrite its rule in reverse order. Rather than requiring employers to adopt a mandatory vaccination policy with an exception for employers that instead require unvaccinated workers to test and mask, OSHA’s new regulation would make employers mandate worker testing and masking first, with an exception allowing employers to waive this rule only for the vaccinated.
You may think merely flipping the order of these requirements is too clever by half. But if it seems that way, it’s only because the court’s opinion on Thursday was itself too clever. There is, after all, nothing in relevant statutes that prohibits OSHA from protecting against workplace dangers through requirements that have the incidental effect of protecting against similar dangers outside of work too.
Indeed, reenacting OSHA’s COVID workplace safety rule as a mask-or-vax mandate would comport precisely with the conservative justices’ majority opinion. They admitted, for example, that “targeted regulations” that “account for [the] crucial distinction” between “occupational risk and risk more generally” would be “plainly permissible.” That is exactly what a rule requiring workers to mask only while at work would do.
It is possible, of course, that under a revised mask-or-vax rule, more employees would choose to test and mask while at work rather than get vaccinated. But given a choice between obtaining a vaccine and taking on the burdens of testing and daily masking, at least some would choose the former.
Most importantly, even if the rule’s ultimate effect is only to make testing and mask-wearing widespread within places of work across America, that would still represent a considerable public health advancement. Dozens of states do not currently require masks indoors despite ample evidence that masking saves lives and enjoy widespread public support. The Supreme Court may have handed U.S. workers a dangerous and legally ungrounded blow. But the Biden administration can act decisively to protect them in this crucial moment.
Aaron Tang is a law professor at UC Davis and a former law clerk to Justice Sonia Sotomayor. @AaronTangLaw