The Biden Employer Vaccine Mandate: In Defense of National Federation of Independent Business v. Department of Labor

Yves here. We are featuring this Peter Dorman post on SCOTUS ruling that the Biden Administration’s vaccine mandate, devised as an OSHA regulation for businesses with 100 employees or more, was a regulatory overreach. Dorman is one of the few of the left-leaning persuasion (aside from the doctrinaire “bodily integrity” types) who acknowledges that the OSHA rule was poorly designed by failing to include other Covid safety measures which were much less intrusive to implement, like masks. Dorman also refreshingly points out that the vaccines do not do much if anything to reduce transmission.

It’s sad to see fellow Econospeak writer Barkeley Rosser, in a new post, whinge about Virginia Governor Youngkin getting rid of the vaccine mandate for state employees, with his reason being it will allegedly endanger his health. It’s just depressing to see how few people understand that the Covid vaccines are not sterilizing and the only prospect for getting closer to that level would be a nasal vaccine.

By Peter Dorman, professor of economics at The Evergreen State College. Originally published at Econospeak

On January 13, the US Supreme Court, by a vote of 6-3, blocked the Biden administration’s vaccine mandate. The policy took the form of an emergency OSHA (Occupational Safety and Health Administration) standard and would have required all firms with more than 100 workers to mandate vaccination or a testing regime as a condition for remaining employed. The conservative majority on the court argued that this measure was too far from the original intent of the law to warrant the deference that is normally given to administrative flexibility.

Quite aside from the practical significance of the standard, which I’ll get back to, I think the court was right. The Occupational Safety and Health Act of 1970, which created the OSHA administrative apparatus, was centered on protecting workers. It was not intended to be a general purpose vehicle for advancing public health across the entire population.

Why do I think the emergency Covid standard wasn’t primarily about workers? It did take the form of an employer mandate, after all. The reason is that workers have been exposed to many risk factors from the virus with far greater impact than the vaccine status of their colleagues, and the Biden administration expressly refused to take any protective action.

Poor ventilation in the workplace is extremely hazardous. A requirement to be masked in indoor settings and the provision of high quality masks would fit perfectly into the existing regulatory framework regarding personal protective equipment. Redesigning workplaces to reduce crowding would be a big step, as would regular testing of everyone at employer expense. Finally, a paid leave policy, while arguably a big step beyond traditional health and safety regulation, would have an immense impact on worker exposure to the virus.

In fact, a wide-ranging emergency standard with many of these provisions was drawn up early last year, but the Biden administration refused to adopt it. Instead, it issued a standard only for health care workers and left everyone else unprotected. Not surprisingly, the Supremes did endorse a vaccine mandate for this subset of the labor force: the administrative decision to protect health care workers against multiple Covid risk factors made it more difficult to argue that the additional protection afforded by a vaccine mandate was beyond the reach of the law.

By its own actions, the Biden administration has made it clear it has no intention of protecting workers as workers from avoidable pandemic risks. Its vaccine mandate was intended to apply to workers as available components of the general public, and insofar as this is true, it is beyond the intended scope of the OSH Act.

This is supported by the practical effect of striking down the standard. It will presumably lead to less vaccination and testing. But vaccination status has little effect against infectiousness with the dominance of the Omicron variant, and the testing regime proposed in the standard was too weak to prevent a tsunami of false negatives. The only consequential outcome will be that there will be a higher percentage of cases that result in hospitalization, ICU usage and death. That is terrible, but its social cost is at a population level (strain on the medical system, social disruption), not on workers as workers.

I think, despite its limitations, the vaccine-or-test standard would have been on better constitutional footing if the administration had also adopted a broader set of workforce protections for all workers as it had for health care workers. On a practical level, masking, testing, ventilation and paid leave as general workforce mandates would have had a far larger impact on the course of the pandemic.

In writing this I am not endorsing all the language of the majority, much less the fraction that issued a concurring opinion that would have greatly widened the precedential effect of the decision. There are some weird attitudes on that bench. But the central logic strikes me as correct.

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    1. MP

      I think the issue of workaround is overblown based on the partisan bend of the court. The Trump Muslin ban was not considered a workaround despite his literal proclamations as such, but Ron Klain’s tweets are a workaround? I think you can only draw that conclusion if the ruling was pre-decided and they worked backwards from there. Not to say that Klain is smart, of course.

      1. flora

        Ron Klain’s tweets were, to paraphrase an earlier Turley twt, like the guy in the ‘Perry Mason’ TV show who jumps up at the end of the trial saying , ” I did it! I’m guilty! “

      2. marym

        Five conservative justices also didn’t block the Texas anti-abortion law from going into effect despite it being a workaround.

        “Chief Justice Roberts, in dissent, said he would have temporarily blocked the law from going into effect in order to give the lower courts adequate time to hear and decide “whether a state can avoid responsibility for its laws” by “essentially delegat[ing] enforcement to…the populace at large.””

        1. LarryMotuz

          I guess that was an infinitely better alternative to him than his actually trying to get a majority of the Court to agree to rule that no state can avoid responsibility for its laws.

  1. Tom Stone

    It’s hard to use a nasal vaccine when you keep your head where the sun don’t shine.
    Doubling down on vaccines when we now have two strains (Delta and Omicron) that evade them, with more variants coming might not be the best idea politically.
    More deaths are fine if you can control the narrative, but vaccine mandates are very hard sell with the virus going through the vaccinated population like a wildfire..

  2. jefemt

    Apologies… are there nasal sprays in the works that are sterilizing vaccines?
    Would it be more accurately descriptive to refer to nasal sprays as effective prophylactics?

    The US-available mRNA or JnJ / Jensen Jab or Shot.
    I used the term non-sterilizing therapeutic the other day, thinking I was being more accurate, and boy the reaction of derision and comeuppance…

    I am constantly vexed by the fast and loose use of words, it seems particularly in the health arena… viz Care versus Insurance. And now vaccine

    1. Yves Smith Post author

      Yes, we’ve written about that for a while. Novovax was working on a nasal vaccine expected to be approved late 2022. Sadly recent intel suggests they are either delaying or punting on that.

      Our GM has said current vaccines could also be delivered as nasal vaccines. Over my pay grade as to what it would take, but presumably even though the tech is established, it would still require separate clinical trials, and the Pfizers of the world see no reason to cannibalize their jabs….at least before another nasal vaccine enters clinical trials.

    2. flora

      an aside re Rage reactions: Don’t let the Rage Rangers get you down. (and boy howdy are there a lot of ragers out there.)

    3. fool's idol

      The inactivated poliovirus vaccine (IPV) isn’t sterilizing ( (That study also points out that, while the oral poliovirus vaccine is much closer to sterilizing – i.e., preventing intestinal infection and viral shedding in feces – it isn’t completely so. The odds ratio is low, but it isn’t zero.) But we are close to eradicating polio, and IPV has been one important part of that effort.

      The hepatitis B vaccine isn’t sterilizing over the long term (, and yet it is regarded as quite effective.

      The MMR vaccine is effective in most people at providing sterilizing immunity to measles, but is not 100% effective at preventing measles infection and transmission (, (See also the 2012 mumps outbreak in CA, which involved infection, transmission, and disease among vaccinated people, even those who were asymptomatic – i.e., MMR is not sterilizing with respect to mumps: But it is regularly and rightly touted as a critical tool in the arsenal of public health.

      The new malaria vaccine announced last year isn’t sterilizing, and is much less effective at preventing serious disease than the mRNA and J&J COVID vaccines (; a news article, but it contains the gist), but its announcement was greeted by public health experts far and wide as a stunning win (and was also approvingly reported here at NC).

      The smallpox vaccine is believed to be sterilizing, but this judgment was made on epidemiological and other indirect evidence, and has never been tested in a controlled setting ( At the end of the day, though, it doesn’t particularly matter whether it is sterilizing or not, because the vaccine wasn’t the only tool necessary to eradicate smallpox in the wild – a massive worldwide campaign, including novel public health strategies like ring vaccination, was required.

      The fact is, a vaccine that isn’t sterilizing, or that only works in some people, or that only prevents severe disease in some people, is still a vaccine. We call things vaccines that don’t provide sterilizing immunity all the time, and have since the origin of the word (i.e., using cowpox). A vaccine can be highly imperfect and still be an important tool in mitigating the harm of an infectious disease. (That said, of course, there’s still plenty of room to argue about the relative usefulness of a particular vaccine, like the COVID ones.)

      I can’t speak to the derision and vitriol you received on referring to the COVID vaccines as “non-sterilizing therapeutics” (the internet being just crammed to the gills with unpleasant people eager to dunk on anybody for any reason), but I don’t think it’s an especially useful distinction to propose, as I hope the points above make clear.

      1. Soredemos

        Sorry, but the general public understands that ‘vaccine’ means ‘get a shot for a thing and you’ll never get that thing’. This is how they have always understood it. On top of that, that is explicitly how the covid-19 vaccines were presented to the public (‘get the shot and you can take your masks off’).

        I’m really getting tired of people acting like the inside baseball knowledge among medical professionals was how the public understood these things. It wasn’t then, and it isn’t now.

        1. Lambert Strether

          > the general public understands that ‘vaccine’ means ‘get a shot for a thing and you’ll never get that thing’.

          That’s why Biden/Walensky saying “You will be protected” (no qualification whatever) was so destructive of trust.

          It may also be that our views of vaccines are anchored by childhood vaccines, which are for all practical purposes are sterilizing, i.e. you do not have to factor those risks into your decision making.

          I did a search from 2010 to 2020, to eliminate current controversies, the CDC changing definitions and so forth, and found The Future of Influenza Vaccines: A Historical and Clinical Perspective from Vaccines 2018:

          The gold standard for vaccines against infectious diseases is sterilizing immunity—complete protection from infection, which remains durable over years or a lifetime. Many of the earliest and most successful vaccines were developed to target the once-common acute infections of youth, such as measles, mumps, rubella, and smallpox. Even in ancient times, it was known that for certain diseases, people who survived the initial infection developed long-lasting immunity against reinfection [26]. These examples of naturally acquired sterilizing immunity served as proof of principle that immunization was conceptually feasible, if the immunogen could stimulate the same immune response as the pathogen itself [27].

          1. fool's idol

            I think you’re close to the mark when you say that “our views of vaccines are anchored by childhood vaccines.”

            But I think it’s probably more accurate to say that views of vaccines as being more protective than they are (which, as I said in a sibling comment, is a hazy assertion to pin down) are affected as much or more by the overall minuscule prevalence of once-common childhood diseases in the US (and as you probably know, this was the result of large public health campaigns, in which vaccines were critical but not the only factor). Were measles still commonly encountered, the 97%ish efficacy rate of the MMR vaccine against measles would be understood by every parent in the country, because chances are good most people would know a vaccinated child who had contracted measles (the calculation is simple but the details unimportant here).

            Unfortunately, we may get a chance to test this assertion in the next few decades.

        2. Basil Pesto

          Sorry, but the general public understands that ‘vaccine’ means ‘get a shot for a thing and you’ll never get that thing’. This is how they have always understood it.

          Annual flu vaccines?

          The messaging has been lamentably shite and these vaccines never should have been marketed as “the road out of the pandemic”, but that doesn’t mean one can put scare quotes around “vaccine” in the Covid context – implying that they’re somehow pseudo-vaccines because they’re non-sterilising – and think they’re being clever, when in fact they are being a silly ignoramus.

          1. Soredemos

            Flu mutates annually, hence the need for new vaccines. You’re not actually countering my point.

        3. fool's idol

          I’m generally skeptical of arguments that go roughly “I know that what you’re saying is true, but John Q Public is ignorant, and therefore we must act as if everyone knows nothing,” because they’re essentially impossible to prove or disprove. We can argue until we’re both blue in the face about what “the general public” understands the word vaccine to mean, and not get anywhere. There’s no survey that I know of that actually queries this, so we’re forced to rely on gut-checks and anecdotes, both of which are easily colored by what we want to believe.

          But even if it is the case that “one shot and you’re safe forever” is the general understanding of what a vaccine means – and I do not believe this is true, your vehemence notwithstanding – then the general understanding needs to change. The reality of infectious disease isn’t going to change, and every medical intervention involves trade-offs and nuance.

          But if you think that “medical interventions are imperfect” is “inside baseball knowledge among medical professionals”, I’m not sure quite how to respond. Everyone knows medicines have side effects. Everyone has to get a tetanus booster every ten years – don’t you think a decadal reminder that some vaccines aren’t perfect forever begins to sink in?

          The messaging around the COVID vaccines has changed over time, and has varied from source to source, even officially (the optimism was a great deal more guarded in December of 2020 than it was in May of 2021). But “‘get the shot and you can take your masks off'” was indeed an absolutely stupid thing to say. It put people at risk for no reason, it was factually baseless, and it has directly contributed to the kinds of misguided attempts at terminological games I was replying to above. The importance of vaccination was becoming a harder sell even before COVID, and I am certain this will only make it worse.

          Finally, I think you have misunderstood the point of my comment. I don’t chastise the original commenter for stupidity or malice, because believing something that is incorrect doesn’t make a person stupid or malicious. And “a vaccine which does not provide sterilizing immunity does not qualify as a vaccine” is a factually incorrect statement that is worth discussing. Hence the logic I tried to lay out above – that many vaccines aren’t sterilizing, and in fact many are only moderately effective, and they are still extremely useful in spite of these flaws, and even sterilizing vaccines are not sufficient by themselves to eliminate the threat posed by an infectious disease. I want more people to understand these things, and so when I saw someone making this argument, which I have noticed more than once here at NC, I tried to demonstrate why it doesn’t hold up.

          The current COVID vaccines are imperfect, and do not provide sterilizing immunity. That’s a shame – if they did, we’d be in a much better place. But they’re still vaccines.

    4. Lambert Strether

      > are there nasal sprays in the works that are sterilizing vaccines?
      Would it be more accurately descriptive to refer to nasal sprays as effective prophylactics?

      This is a layperson’s understanding, which others may wish to correct–

      The virus first grows and propagates from the nasal tissues so it makes sense to stop if there if we can. As it happens, the nasal tissues have an entirely separate immune system of their own, which vaccines injected into muscle does not activate. Here is a round-up of nasal treatments, including vaccines, at NC.

      So, yes, it makes sense to think of nasal vaccines as sterilizing. They work like any other vaccine, just on another immune system.

      Leaving aside base commercial motives — I mean, who really wants a sterilizing vaccine if you can rent, er, protection* as a service every X months — nasal vaccines have delivery issues that syringes do not.

      NOTE * Nice lung you’ve got there…

  3. MP

    Just because the Administration could have better tailored the rule based on the considered court logic doesn’t mean the court’s logic is entirely correct. Their argument boiled down to the fact that OSHA can only regulate workplace safety and not something that extends beyond the control of the employer. Not entirely true, and it only makes sense if they worked backwards from their conclusion. OSHA has full authority to regulate air, water, chemicals, and particles that have nothing to do with work but intercede into the work process. Just because the government is letting the water pipes use lead doesn’t mean an employer doesn’t have a responsibility to make sure workers aren’t ingesting lead in water.

    That being said, I do believe the Biden Admin knew this and expected it to fail so they can say they “did something.” Just as OSHA can regulate lead in water, they could regulate covid in air. There was nothing stopping them (of course, except Rule #1) instituting standards for Air Changes Per Hour, CO2 meters, HEPA, ventilation, high-quality masking, paid leave, etc. and that matters way more than what is the obsession over an order that even as admitted within the order, only saves about 6K lives over six months. I also think there’s a media fixation on the Court because there’s definitely a lot of fear in liberals and conservatives alike that the Court’s just blatant disregard for the populace will delegitimize it. And it has.

  4. Glossolalia

    Are there other examples of OSHA mandating something supposedly for employee safety and having the rule only apply to employers of a certain size? The rule seemed absurd to me because it seemed to suggest that covid wasn’t an issue if you have 99 employees or less.

    1. jimmy cc

      Reporting requirements and penalties are based on business size. Small businesses are also exempt from OHSA safety inspections.

      Besides those, I don’t know of any others off the top of my head, but they may exist.

      1. chuck roast

        Around 33,000 OSHA inspections in 2019 (pre-covid). Unprogrammed inspections – 18,000. There were around 7,000 referrals. So, figure 11,000 unprogrammed inspections all across America. What are the chances? OSHA, a toothless tiger.

  5. rd

    Recent studies I read say fully vaccinated shed less virus than those who aren’t. May be a matter of degree but this sure does not sound like it supports the supreme Court decision.

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