President BidenJoe BidenGrant Woods, longtime friend of McCain and former Arizona AG, dies at 67 Sanders on Medicare expansion in spending package: 'Its not coming out' Glasgow summit raises stakes for Biden deal MORE recently announced forthcoming federal safety regulations mandating vaccines against COVID-19, or weekly testing, for an estimated 100 million Americans. The Occupational Safety and Health Administration (OSHA) will draft the regulations over the coming weeks, which apply to employers with more than 100 employees. For one key group, the nation’s 3.5 million public school teachers, Biden’s vaccine mandate will cover only half.
Why half? Because Biden’s only politically feasible path forward for this mandate was through OSHA, even if bizarre technicalities of the agency’s authority across states drastically limits coverage for schools.
Counterintuitively, the way OSHA laws define “employer” means the new regulations will only apply to school districts with more than 100 employees in states that are not subject to direct oversight by OSHA. Within the 24 states under OSHA’s direct jurisdiction, the term “employer” explicitly excludes state and local government employees, including public school teachers and staff. State and local government employees in those states — including 47 percent of the nation’s public school staff — would be subject to state-issued mandates only.
State and local government employees in the remaining 26 states are outside of OSHA’s direct enforcement authority because they have OSHA-approved state occupational safety and health plans. However, those states’ plans must be “at least as effective” as OSHA standards, and they must include all state and local government employees. Ironically, it will be these states that, on paper, have direct control over their own health and safety regulations that will be subject to the forthcoming federal mandate.
How far reaching will this mandate be for public schools? Very far reaching, or not at all, depending on the state. Individual schools often have fewer than 100 employees, but teachers and staff are employees of school districts. In the 26 states covered by “state plans,” over 95 percent of public school employees work for districts with more than 100 employees. Half of the nation’s teachers work in those states, and will be required to get vaccinated or submit to weekly testing. The mandate would cover no public school teachers in the remaining 24 states.
Biden’s OSHA mandate will almost certainly be challenged in the courts, but chances are good that it will stand. The Federal legislation that created OSHA gives the Department of Labor authority to issue an “emergency temporary standard” (ETS), and the Biden administration issued one this June aimed at protecting healthcare workers from COVID. So far, that rule has withstood opposition.
Challenges will likely hinge on whether COVID is considered a “grave danger” under the law and whether the emergency measure is “necessary.” Courts have historically given administrative agencies wide latitude in making policy decisions, including when the last pre-COVID ETS was challenged. Further, the choice implicit in the proposed rule, to become vaccinated or submit to weekly testing, reduces the burden of the mandate on employees, giving OSHA more wiggle room in arguing that the ETS is “necessary.” Of course, the final decision depends on the courts, and likely a conservative-dominated Supreme Court.
Whether Biden’s proposed rule is an executive overreach is in the eye of the beholder. However, the question takes on an interesting valence in the context of schools, where the limits of circuitous executive authority are on full display. The most appropriate route to a universal vaccine mandate for schools would be through Congress. With Congressional politics making that path impossible, especially so far into the pandemic, Biden is flexing his administrative muscle to get — at least when it comes to schools — quite literally half a loaf.
If the ends justify the means of using whatever administrative tools are at hand in this case, where does that justification end? A mask mandate could easily follow from the OSHA vaccine mandate logic. Biden is already using the Department of Education’s Office of Civil Rights (OCR) to counter bans on mask mandates in several states. Masks are arguably crucial to worker safety, especially in schools that everyday host the highest concentrations of unvaccinated people (children under the age of 12). An OSHA-enforced mask mandate would trump state rules on masking in half of the states, including four of the five states currently under investigation by OCR.
If masking is in play, what about social distancing requirements? The limiting factor in this case is the will of the president. Those in favor Biden’s vaccine mandate would do well to consider how they would feel about the previous president (or future Republican presidents) wielding the same power.
Whether you favor or oppose such vaccine mandates for schools, the unevenness of OSHA authority over public school districts demonstrates the peculiarity of policies that stem from executive authority. Of the three limiting factors on Biden’s exercised OSHA authority — presidential will, the courts, and the technical machinery of the administrative state — the last is the reason that only half of the country’s teachers will face federally mandated vaccination or testing this school year.
Nat Malkus is a senior fellow and the deputy director of education policy studies at the American Enterprise Institute.