This Legal Memorandum is not to be disseminated without the express written permission of John C. Porter, Esquire. CAVEAT: This is not intended to be legal advice for your particular situation. You should consult with legal counsel of your choosing for specific advice applicable to your particular situation and circumstances.
This Memorandum should be read by all employers, not just large employers.[i] A recent ABC News Article quotes a former President Biden advisor as calling for the Biden Administration to extend this vaccine mandate to all businesses, not just those with more than 100 employees. David Michaels PhD, MPH is an epidemiologist and professor at the George Washington University School of Public Health. His primary expertise is in worker safety and health. Dr. Michaels[ii] was Assistant Secretary of Labor for OSHA from 2009-2017 and was the longest serving administrator in the agency’s history. Moreover, he was on the Biden Administration’s Transition COVID-19 Advisory Board.
Dr. Michaels has called upon the Biden Administration to extend this vaccine mandate to all employers.[iii] ‘“This is what you must do to make sure the workplace is safe,’” Dr. Michaels is quoted as saying.[iv]
OSHA Regulation Requiring Large Employers to Ensure Worforce Vaccination or Weekly Negative Testing
President Joe Biden announced last week that he has directed the Department of Labor’s Occupational Safety and Health Administration (OSHA) to craft an Emergency Temporary Standard (ETS)[v] that will require employers with 100 or more employees to ensure all employees are vaccinated against COVID-19 or to show a negative test result every week.[vi] The regulation will carry a penalty of approximately $14,000.00 for each violation.[vii] The regulation will also require employers to provide paid time off for employees to get the vaccine and for recovery from the vaccine.[viii] Exemptions on religious grounds and for persons with disabilities are expected.[ix]
Informal Legal Opinion
For the following reasons, I believe that this ETS will withstand constitutional and judicial scrutiny and will be implemented. I add the caveat that this ETS has yet to be drafted and without the benefit of the actual text, I have conducted my analysis based upon what has been reported by the Office of the President of the United States, the media, and other sources. I also add the caveat that part of the fate of this regulation will be based upon the science, statistics,[x] and factual arguments set forth before the courts that examine this ETS. For the ETS to withstand judicial scrutiny, OSHA must prove, inter alia, that the standard is necessary to protect employees from a grave danger,[xi] in this case COVID-19.
OSHA Power and Employer Responsibility
It is fundamental that OSHA can regulate safety and health in the workplace. History and case law is replete with successful regulations that protect workers from cotton dust, chemical fumes, asbestos fibers, and radiation, to name a few. OSHA regulations can set the permissible limits of exposure to airborne contaminants in the workplace and can mandate that certain employees wear respirators and that all workplaces meet ventilation requirements. President Biden stated in his speech this past Thursday, “The bottom line: We’re going to protect vaccinated workers from unvaccinated co-workers.” [xii]
It is also fundamental under OSHA’s Duty Clause that employers
shall furnish to each of [their] employees employment
and a place of employment which are free from
recognized hazards that are causing or are likely
to cause death or serious physical harm to [their]
United States Supreme Court Vaccine Precedent
In 1905 the United States Supreme Court, in the case of Jacobson v. Massachusetts[xiv] upheld a Massachusetts statute and an ordinance of the City of Cambridge that required all persons to be vaccinated against smallpox. Failure to do so was a crime punishable by a fine of $5.00. Minister Henning Jacobson objected to the vaccine (not on religious grounds), was found guilty, and refused to pay the $5.00 fine. Jacobson argued that his 14th Amendment Rights were being violated (including due process), compelling a person to introduce a disease into a healthy body is a violation of liberty, and the law was not a law of general application because children were exempted. The State of Massachusetts argued that the statute was enacted as a measure to protect the health of the citizenry and that the ordinance had a “real and substantial relation” to that objective. The Jacobson Court (Chief Justice John Marshall Harlan wrote the opinion of the Court) reiterated a principle that the Supreme Court had espoused before – “persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the State . . . .”[xv] The Jacobson Court continued, that “[e]ven liberty itself, the greatest of all rights, is not unrestricted license to act according to one own’s will.”[xvi] The City of Cambridge’s Board of Health deemed vaccinations necessary to protect the public health and safety. The majority of members of the medical profession and the public accepted that vaccination against smallpox was safe, necessary, and effective.[xvii] “[A] community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”[xviii]
But perhaps the most transferable quote from the Jacobson Court is the canon, “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly free from restraint.”[xix]
America is the Land of the Free and the Home of the Brave. Yet as all Americans should know, “freedom is not free.”
More recently than 1905, the Supreme Court in 1981 confirmed that the “protection of the health and safety of the public is a paramount governmental interest which justifies summary administrative action.”[xx] The current Court, in 2020, confirmed that “[s]temming the spread of COVID-19 is unquestionably a compelling interest” of the government.”[xxi]
The 2020 Supreme Court opinion is most foretelling. In that case, Roman Catholic Diocese v. Cuomo, the Roman Catholic Diocese of Brooklyn and Agudath Israel of America challenged New York Governor Andrew Cuomo’s assembly restrictions that applied to religious organizations but not to commercial establishments in the same “Zone.” While the Roman Catholic Diocese case was primarily a First Amendment freedom of religion case, it dealt squarely with COVID-19 regulations and set the stage for the next surge of COVID-19 litigation.
All nine Justices agreed upon an injunction staying the New York Governor’s Executive Order. They stated, “Members of this Court are not public health experts, and we should respect the judgment of those with special expertise.”[xxii] This statement is foretelling because the overwhelming scientific and medical evidence that I have seen or read indicates that the COVID-19 vaccines protect health and safety[xxiii] and that the vaccines themselves are safe. Accordingly, unless I am missing some persuasive medial or scientific authority, the Supreme Court seems almost bound to accept that science.
Also foretelling is the concurring opinion written by Justice Gorsuch and joined by Justice Kavanaugh, two Justices from the conservative wing of the Court. In that concurring opinion, Justice Gorsuch reaches back to 1905 and Jacobson. Gorsuch states, “Jacobson didn’t seek to depart from normal legal rights during a pandemic, and it supplies no precedent for doing so.”[xxiv] Justice Gorsuch also indicated that a Fourteenth Amendment challenge based upon violations of due process or individual liberties (unless based upon a classification such as race) would be reviewed by the Court under the rational basis test.[xxv] This is the least stringent test, and the government’s policy or regulation will be upheld if there is any reasonably conceivable state of facts that provide the rational basis for the government’s decision.[xxvi]
As recent as 2018 the United States Supreme Court broadcast that the Court “hardly ever strikes down a policy as illegitimate under rational basis scrutiny.[xxvii] When the Court has struck down a policy it was based upon the determination that the policy served only to harm a politically unpopular group.[xxviii]
Perhaps the unvaccinated are an unpopular political group among the vaccinated. Such an opinion is of no moment, however. The science supports vaccinations and the President will be mandating soon that large employers ensure that employees are vaccinated or have weekly negative tests. The science and the OSHA employer’s duty clause supply the rational basis for this policy and regulation.
Where We Go From Here
Work with your Human Resources Department and legal counsel to start preparing your company’s plan for compliance, roll out to employees, and potential response. I am available to assist you. I am also available to assist should you or your organization wish to challenge the ETS.
John C. Porter
Griffith, Lerman, Lutz & Scheib
110 South Northern Way
York, PA 17402
Fax (717) 757-3783
[i] https://abcnews.go.com/Politics/vaccine-mandates-companies-messy-effective-experts-predict/story?id=79939710 (last visited September 13, 2021).
[iii] https://abcnews.go.com/Politics/vaccine-mandates-companies-messy-effective-experts-predict/story?id=79939710 (last visited September 13, 2021).
[iv] https://abcnews.go.com/Politics/vaccine-mandates-companies-messy-effective-experts-predict/story?id=79939710 (last visited September 13, 2021).
[v] 29 U.S.C. S §655.
[vi] https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/09/09/remarks-by-president-biden-on-fighting-the-covid-19-pandemic-3/ (last visited September 12, 2021).
[viii] https://www.shrm.org/ResourcesAndTools/hr-topics/talent-acquisition/Pages/federal-vaccine-mandate.aspx?utm_source=marketo&utm_medium=email&utm_campaign=editorial~HR%20Daily~NL_2021-9-10_HR-Daily&linktext=Biden-Orders-Vaccination-Mandates-for-Larger-Employers-Federal-Workforce&mktoid=49567860&mkt_tok=ODIzLVRXUy05ODQAAAF_b0Mqap6Mk8BRQKdUWPoRNirLw4zahDdxp08lyGEXQItvwQc0zTfASRXHmblON8NVUUst7YKHPh8wPpbHUfS-KL3YeFeIocdU7GQvovhf-j8yBg (last visited September 13, 2021)
[ix] https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/federal-vaccine-mandate.aspx (last visited September 13, 2021).
[x] The DCD website shows that the Delta variant COVID-19 surge is below the surge in infections in January 2021. An opponent of this regulation might argue that the time for the regulation has passed. On the other side of that coin, the CDC reports that currently 53.4% of Americans are fully vaccinated. The Delta variant surge might be twice as large if half of all Americans were not vaccinated.
The Secretary shall provide, without regard to the requirements of chapter 5, title 5,
United States Code [5 USCS §§ 500 et seq.], for an emergency temporary standard
to take immediate effect upon publication in the Federal Register if he determines
- that employees are exposed to grave danger from exposure to substances or
agents determined to be toxic or physically harmful or from new hazards, and
- that such emergency standard is necessary to protect employees from such danger.
29 U.S.C. S §655(c)(1).
[xii] https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/09/09/remarks-by-president-biden-on-fighting-the-covid-19-pandemic-3/ (last visited September 12, 2021).
[xiii] 29 U.S.C. §654(a).
[xiv] Jacobson v. Massachusetts, 197 U.S. 11, 23 S. Ct. 358, 49 L. Ed. 642 (1905).
[xv] Jacobson at 29, 361.
[xvi] Jacobson at 29, 361.
[xvii] Jacobson at 31, 365.
[xviii] Jacobson at 31, 362.
[xix] Jacobson at 28, 361.
[xx] Hodel v. Va. Surface Mining & Recl. Ass’n, 452 U.S. 264, 300, 101 S.Ct. 2352, 69 L.Ed. 2d 1 (1981).
[xxi] Roman Catholic Diocese v. Cuomo, 141 S. Ct. 63, 67, 208 L. Ed. 2d 206, 209 (2020).
[xxii] Roman Catholic Diocese at 68, 210.
[xxiii] A growing body of evidence indicates that people fully vaccinated with an mRNA vaccine are less likely than unvaccinated persons to transmit it to others. https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/fully-vaccinated-people.html (last visited September 12, 2021); cited by Johns Hopkins Bloomberg School of Public Health, https://publichealth.jhu.edu/2021/new-data-on-covid-19-transmission-by-vaccinated-individuals (last visited September 12, 2021); and cited by Yale Medicine, https://www.yalemedicine.org/news/covid-breakthrough-infection-transmission (last visited September 12, 2021).
[xxiv] Roman Catholic Diocese at concurring opinion, 70-71, 213.
[xxv] Roman Catholic Diocese at concurring opinion, 70-71, 213.
[xxvi] Trump v. Hawaii, 138 S.Ct. 2392, 2420, 201 L. Ed. 2d 775 (2018).
[xxvii]Trump v. Hawaii, 138 S.Ct. 2392, 2420, 201 L. Ed. 2d 775 (2018).
[xxviii] Trump v. Hawaii, 138 S.Ct. 2392, 2420, 201 L. Ed. 2d 775 (2018).