Remember all those news stories a couple of months back about labor unions opposing vaccine mandates? Not many did, and when they did, they usually were just positioning themselves to implement the mandates in practical and humane ways (for instance, by securing unvaccinated workers paid leave to get jabbed). Labor opposition mostly faded away. Now the big story is opposition from the management side. I didn’t see it coming, because businesses have so obvious a stake in getting their workers vaccinated as quickly as possible.
The management revolt occurred after the Occupational Safety and Health Administration issued its Covid emergency temporary standard, or ETS, on November 4, requiring large businesses to compel employees either to get the Covid vaccine or get tested weekly at their own expense. The logical business response would be “thank you,” because, as Joseph Briggs, Daan Struyvan, and Sid Bhushan wrote in a Goldman Sachs analysis two months ago, “a higher share of vaccinated individuals should help lower virus spread—and therefore lower the risk of a virus-drag on job growth like we saw in August—and boost labor demand in high-contact services that have been slow to recover.” Duh.
Some business groups expressed enthusiasm for the ETS. “We support the administration’s vaccination efforts,” said the Business Roundtable, “and continued engagement with stakeholders to ensure implementation is a success.” But most did not. The Chamber of Commerce (whose reluctance to endorse the rule I wrote about in September) said that OSHA addressed “some of” its “concerns,” then switched its focus to offering companies advice about how best to abide by it—a tacit, if sulky, signal that it doesn’t plan to make trouble. By contrast, the chamber sent out an ecstatic press statement about House passage of the infrastructure bill.
The strangest business opposition to the ETS came from the National Federation of Independent Business, which is the country’s largest association of small businesses. “NFIB remains opposed to this rule that restricts the freedom of small business owners to decide how best to operate their own businesses,” said Karen Harned, executive director of the NFIB’s Small Business Legal Center. But surely Harned knew that OSHA’s vaccine mandate doesn’t apply to small businesses. It applies only to businesses that employ 100 people or more.
Retailers voiced the most militant opposition to the ETS, portraying it as a new battle front in the War on Christmas. The ETS, the National Retail Federation said, will “impose burdensome new requirements on retailers during the crucial holiday shopping season.”
Oh, please. At the request of businesses, the vaccine mandate will take effect one month later than previously planned, on January 4. Shoppers will be done celebrating not only Christmas (December 25) but also Boxing Day (December 26), Hanukkah (November 28 to December 6), Kwanzaa (December 26 to January 1), New Year’s Eve (December 31), New Year’s Day (January 1), and the Feast of the Circumcision (January 1). Some Eastern Orthodox Christians may not be done shopping because they celebrate Christmas on January 7. But I’m guessing even they get the bulk of their shopping done before January 1, when the big post-Christmas sales end.
Granted, some parts of the ETS take effect before January 4. But these are extremely minor and consist mostly of measures any sane retailer will have imposed long ago. By December 5, for example, all unvaccinated employees reporting to a workplace will have to be masked. But in every store I visit, all employees and all customers already must be masked, vaccinated or not. By December 5, employers must start granting their unvaxxed employees paid time off to get vaxxed. But at this late date, that requires at most two quick trips to a drugstore. By December 5, employers must share information with employees about the ETS and about the efficacy of the vaccines. But that information is easily downloadable from the federal government. Here’s a fact sheet on the ETS, and here’s a webinar. Here’s a fact sheet on the efficacy of the vaccines from the Centers for Disease Control and Prevention. Do I have to do everything?
The Retail Industry Leaders Association, which represents bigger retailers like Target and Best Buy and the Gap, concedes that “the mandate on private employers technically begins post-holiday.” But “the planning time to design and implement the mandate will fall during the busiest part of the shopping season.” So what? Retail clerks don’t design and implement companywide policy. That’s what the suits do back at company headquarters. Maybe what the RILA means is that executive suites start emptying out for the holidays around November 15. If so, then boo freaking hoo. It’s called an emergency temporary standard because we’re in an emergency. More than 1,000 people are still dying from Covid-19 every day. Cabo will have to wait.
On the day after OSHA issued its ETS, a Louisiana supermarket owner named Brendan Trosclair—backed by the anti-labor Liberty Justice Center, and eventually joined by attorneys general in Louisiana, Texas, Mississippi, South Carolina, and Utah—sued to block the measure. The petition said that Trosclair’s supermarkets (two Ralph’s Markets, two Butcher Boys, and 10 Save a Lots) “will be adversely affected by the ETS because they already face worker shortages.” Also joining the Trosclair suit were six Texans employed by a kitchen ventilation system company called CaptiveAire Systems, Inc. They were unlikely to spread Covid-19, the petition said, “because they work mostly alone on roofs” and “only come into contact with customers briefly at customer workplaces.” That’s Trosclair’s factual case in its entirety.
The petition disputed the legality of the ETS under the enabling statute, suggesting somebody at Liberty Justice Center neglected to read section 6(c) of the Occupational Safety and Health Act of 1970. The petition questioned OSHA’s right to issue the ETS under the Interstate Commerce Clause, which the courts have recognized as a constitutional basis for federal regulation since the 1940s. And the petition disputed the ETS’s legality under the nondelegation doctrine, an originalist argument that, as TNR’s Matt Ford has written, the Supreme Court’s conservative majority may one day use to eviscerate the administrative state. But probably not in the middle of a deadly pandemic. That’s Trosclair’s legal case in its entirety.
The petition was a frivolous document thrown together in obvious haste. Almost any federal judge in America could be counted on to tear it up and tell Trosclair to get lost. But the Liberty Justice Center chose its venue wisely. The Occupational Safety and Health Act allows lawsuits against emergency temporary standards to be introduced at the appellate level, bypassing federal district court. So Trosclair filed his petition in the most crackpot appellate venue in the country.
That would be the Fifth Circuit Court of Appeals in New Orleans. Twelve of the Fifth Circuit’s 17 active judges were installed by Republican presidents, six of the 12 were nominated by Donald Trump, and their philosophy of judicial restraint might best be summed up as laissez les bons temps rouler. The Supreme Court, Ruth Marcus noted on August 31 in The Washington Post, found it necessary to reverse five out of seven Fifth Circuit decisions that it reviewed last term, and six out of seven it reviewed the term before that. More recently, the Fifth Circuit barred a district court from even holding a hearing on whether to issue an injunction against Texas’s Roe-defying law outlawing abortions after six weeks. “Irregular doesn’t begin to describe what’s going on here,” Marcus wrote.
The Fifth Circuit pounced on Trosclair’s petition, immediately issuing a national injunction against the vaccine mandate. The Biden administration, pointing out that “most of their asserted harms are at least a month off,” urged the Fifth Circuit Monday to remove the injunction for now. It also pointed out that Trosclair’s petition had absolutely no legal merit, an argument not likely to interest these particular jurists.
The matter will almost certainly have to be consolidated with a lawsuit filed Friday by 11 red-state attorneys general in the Eighth Circuit in Atlanta and then decided by the Supreme Court, which last month passed up an opportunity to block Maine’s vaccine mandate for health care workers.
Why would Brendan Trosclair want to block the ETS when a Covid outbreak in one of his supermarkets would imperil his profits? Because he isn’t just Brendan Trosclair, supermarket owner. He’s also Brendan Trosclair, Republican candidate for state representative in 2019. (He lost.)
Management opposition to the ETS demonstrates that business is so captive to the partisan Republican agenda that it will follow it even when it contradicts business’s interests. After Republicans retook the House of Representatives in 1994, John Boehner, then chairman of the House Republican Conference, scolded a Chamber of Commerce lobbyist for the organization’s previous tentative support for Hillary Clinton’s health reforms. Henceforth, Boehner explained, it was the chamber’s job “to categorically oppose everything that Clinton was in favor of.” Otherwise, the GOP might support creation of an alternative business lobby group. Substitute “Biden” for “Clinton,” and you begin to understand why the chamber didn’t want to endorse the ETS.
The ETS represents one of the bigger favors that the federal government has done private industry in a long time. “This actually allows employers to do what they want to do and blame the federal government,” David Michaels, former OSHA administrator under President Barack Obama, told The Guardian. It gives businesses cover to say to workers: Look, if it were up to me, you wouldn’t have to get vaxxed. Joe Biden is making our company do this. But the good cop/bad cop routine won’t work if the business lobby actually succeeds in blocking the ETS. If it can’t support Biden’s vaccine policies vocally, it should shut up and get out of the way.