This is no time for the Biden administration to throw in the towel on vaccine mandates.
Last week’s decision by the US Supreme Court, tossing the administration’s efforts to force private employers to be part of the fight against the COVID-19 pandemic, was disappointing. But it shouldn’t be the end of the fight — not as long as a third of the nation’s population remains unvaccinated and the death toll grows by thousands of Americans every day. It’s simply time for the administration’s disease fighters and lawyers to go back to the drawing boards and pursue a series of smaller efforts that can still make an impact and lead the way out of this public health nightmare.
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After all, the court did give the administration a partial victory, agreeing that the Centers for Medicare and Medicaid Services did indeed have the authority to mandate vaccinations for all critical health care workers at facilities that receive federal funds through the agency. CMS estimated that covered some 10 million workers of whom at least 2 million remained unvaccinated.
But that’s far from the 84 million who would have been covered by the effort to have the Occupational Safety and Health Administration mandate vaccinations or a negative COVID test for workers at all businesses with more than 100 employees.
In an unsigned majority opinion, the court found the regulation “operates as a blunt instrument. It draws no distinctions based on industry or risk of exposure to COVID–19. Thus, most lifeguards and linemen face the same regulations as do medics and meatpackers.
“Permitting OSHA to regulate the hazards of daily life — simply because most Americans have jobs and face those same risks while on the clock would significantly expand OSHA’s regulatory authority without clear congressional authorization,” the court said.
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The administration estimated that some 20 million of those covered by the regulation were vaccine holdouts.
But in one respect the court also pointed to a possible alternative — a small piece of the puzzle, but in a battle like this one, every victory counts.
“That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19,” the court wrote. “Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible.”
For example, it noted, OSHA could “regulate risks associated with working in particularly crowded or cramped environments.”
Outbreaks at the nation’s meatpacking plants early on during the pandemic would certainly put them at the top of an OSHA list of industries that could be subject to a vaccine mandate.
President Biden also took up the challenge presented by the court in a statement noting that the decision “does not stop me from using my voice as President to advocate for employers to do the right thing to protect Americans’ health and economy.
“I call on business leaders to immediately join those who have already stepped up — including one-third of Fortune 100 companies — and institute vaccination requirements to protect their workers, customers, and communities.”
Citibank, Starbucks, and United Airlines have been quite proud of their programs.
“We did this for safety. We believe it saved lives,” United chief executive Scott Kirby told a Senate Commerce Committee hearing on aviation issues last month. “We don’t compromise on safety.” United has some 67,000 employees.
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Most other airlines — American Airlines, Southwest Airlines, JetBlue, Alaska Airlines, and Hawaiian Airlines — have followed suit. Now if only the Biden administration would do its part and adopt a mandated vaccine or test policy for passengers on domestic flights — something either the Centers for Disease Control and Prevention or the Federal Aviation Administration presumably have the power to regulate.
Among federal contractors, Honeywell, with more than 100,000 employees, announced it would stick with the Biden program even after the Supreme Court decision. The company reports some 98 percent of its workforce is either vaccinated or has an approved exemption. “We have consistently maintained that vaccinations are the best way to protect our employees, as well as their loved ones and co-workers, since safe and effective vaccines became available early last year,” a Honeywell spokesman told Bloomberg News.
And then there’s Boston-based General Electric, with a workforce of about 174,000 worldwide. The company, which got such a warm (and financially advantageous) welcome when it arrived here in 2016, became the first major corporation to announce it was halting its implementation of the vaccine or test mandate. How dreadfully disappointing — and what an insult to those, like Governor Charlie Baker and then-Mayor Marty Walsh (now Biden’s labor secretary), who worked so hard to land the GE “brand” for Massachusetts.
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In fact, GE had already ended the mandate for those working under federal contracts after that vaccine mandate was halted last month by a federal district court in Georgia.
Who knew this once-revered company would become such an outlier?
Again, this isn’t a reason for the Biden administration to give up. Rather, it’s a reason to continue to fight harder — to use the bully pulpit and whatever tools remain in the federal toolbox, agency by agency, until the job is done and this dreadful pandemic is on the run.
Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.
