Billy Long: The COVID pandemic does not fall under OSHA's emergency powers

(From Seventh District Congressman Billy Long)

On December 4th, 2020, then President-elect Biden was asked point blank if he would mandate COVID vaccines for Americans. “No, I don’t think it should be mandatory. I wouldn’t demand it be mandatory,” he responded. 

As we have come to learn in the last ten months, President Biden can never be taken at his word. 

By September, the President’s tone, and position on vaccine mandates, did a complete 180. He said he was getting impatient with unvaccinated Americans. I hate to break it to you Mr. President, but the American people do not exist to please you, or any president for that matter. 

This impatience led to a vaccine mandate on companies with more than 100 employees, implemented by OSHA of all agencies. A word to the wise seems appropriate here: Do you own a business? Keep your work force at 99 or below and COVID will not enter your facility. This government-imposed mandate is both illegal and unconstitutional, as the courts appear to agree.

OSHA was created in its current form in 1971. It was formed under the Department of Labor to implement workplace safety protocols. Hence the name, Occupational Safety and Health Administration. 

Congress gave them the power to tackle workplace hazards, using a strict process of public comment before any such standards could be implemented. This understandably takes a considerable amount of time, which made this a process President Biden wished to avoid like the plague.

OSHA does have the power to enact workplace regulations on an emergency basis, bypassing the lengthy process of public comment. This is exactly what the agency did in this instance. The only problem for them is that the COVID pandemic does not fall under their emergency powers. 

An Emergency Temporary Standard (ETS) must combat exposure to toxic substances or agents which pose a grave danger to the employees. The law clearly did not envision a virus being considered as a toxic substance. It should also be noted that the vaccines work. For those who are already vaccinated, there is very little grave danger posed by COVID. 

While breakthrough infections do occur, effects of the virus are substantially less serious compared to those who are unvaccinated. This clearly does not meet the “grave danger” standard that Congress set forth. A real emergency would require immediate action, yet the ETS was not scheduled to go into effect until TWO MONTHS after it was announced. For this reason alone, OSHA loses the ability to claim there is an emergency requiring this ETS.

As expected, as soon as the ETS was announced, legal action ensued. Impacted businesses and states joined forces against an overreaching federal government mandate. The 5th Circuit Court of Appeals in New Orleans acted swiftly, issuing a stay of the rule pending a full review by the court. This stay was further extended last weekend by the three-judge panel which unanimously said that the law was likely to fail both on the merits and the question of constitutionality. The Court argued that this mandate violates the states’ rights of police power and causes irreparable harm to the businesses and their employees if the mandate is not temporarily blocked.

While this temporary ruling is encouraging, it is not the end of the OSHA mandate. The final decision will likely rest with the Supreme Court, and I am hopeful that they will do the right thing by siding with the Constitution and permanently striking down this blatantly unconstitutional mandate. I have said it many times, and I will say it again: I received all three rounds of the Pfizer vaccine as soon as I was eligible. I encourage all Americans to consult with their doctor as I did to see if they are a good candidate to receive the vaccine. The decision to get vaccinated or not was my personal decision as it should be for all Americans. This case is not about whether vaccines are good or not, it is about the rule of law. We cannot throw out centuries of freedom simply to appease an impatient president.