By Joshua Arnold
President Biden's vaccine mandate on employees of private companies is expected soon as OSHA finalizes the Emergency Temporary Standard (ETS) for publication in the Federal Register. That's the subtle, non-threatening way that the bureaucracy ruins the lives of millions of hard-working Americans. But much like the old quip about the Holy Roman Empire, OSHA's vaccine mandate will be neither Emergency nor Temporary nor Standard.
Congress provided for Emergency Temporary Standards as a way for OSHA to avoid all the usual rigamarole of federal rulemaking in situations where a workplace hazard constituted a "grave danger," so that workers could be protected in a timely fashion. The danger coronavirus posed to American workers was most pronounced in the spring of 2020, when we knew the least about the risks posed or effective treatments. OSHA drafted no ETS. Then in winter of 2020-2021, COVID was most widespread; the death rate was down, but virus transmission was way up. Still, OSHA drafted no ETS. In the first months of 2021, cases and deaths dropped precipitously as the FDA approved three vaccines for emergency use, and millions of doses were distributed; as more Americans got vaccinated, Americans got safer by the day.
Joe Biden entered the White House in January and directed OSHA to draft an ETS, which it did six weeks after Biden's deadline. Five months and millions of vaccinations later, President Biden finally announced that he directed OSHA to do it for real, although he had insisted previously that he had no power to mandate vaccination. Americans then waited another six weeks for OSHA's proposed final rule, long enough for the nation's biggest newspapers to question the delay. The Biden administration has dragged its feet at every step of this "emergency" rule, even as Americans got safer by the week. So, what makes it an "emergency" now?
Then there's the notion that the order will be temporary. OSHA can continue to enforce this rule until the grave danger to employees is past. But when will that be? The coronavirus itself will be kicking around for a long time, just like influenza and the common cold. We already have widespread, effective vaccines, tests, and treatments for COVID. Barring a cure for the virus, we already have every conceivable medical remedy. Yet administration officials repeatedly evade the vaccination threshold that would satisfy them, provoking speculations that restrictions will continue indefinitely because they have proved politically expedient. Unfortunately, history teaches that governments rarely surrender power once acquired. At 20 months of "15 days to slow the spread," it's time to demand answers, accountability, and freedom.
President Biden has worked hard to make full vaccination and full masking the norms for all Americans. But the data show Americans haven't accepted his revisions to their daily lives. A sizable minority of Americans resist vaccines and/or masks. A person's decision to get a vaccine or wear a mask is informed by their own individual risk factors, and tolerance for risk. Superimposing a uniform mandate for maximum risk avoidance across all large and medium-sized businesses is like flattening the Rockies by covering them with plywood. Unless the mandate is so riddled with exceptions as to be meaningless, those businesses stand to lose a sizable portion of their workforce (10-30 percent). Whether as a norm or a level of attainment, there's nothing "standard" about the OSHA vaccine mandate.
Quixotic measures like OSHA's ETS may be hurting President Biden's approval rating, which hit negative 12 percent last week, as voters are increasingly disinterested in pandemic politics. Americans everywhere are asking him, please don't tank the economy in pursuit of zero COVID.
