Who decides on Vaccine Mandates?

Introduction

“Who decides”? That’s how Justice Neil Gorsuch framed the question facing the Supreme Court of the United States of America (the Supreme Court) in National Federation of Independent Business et al v Department of Labour, OSHA (the OSHA case).¹ Justice Gorsuch’s pithy phrasing captures in simple terms the democratic imperative of finding a basis in law, passed by a duly elected legislative body, that authorises vaccine / testing mandates in the fight against Covid-19. This became the central issue in the OSHA case, where the Supreme Court was asked to block an attempt by the Biden Administration,² acting through the Occupational Safety and Health Administration (OSHA), to compel 84 million American workers to make a choice: to get vaccinated against Covid-19 or else permanently mask-up at work and get tested weekly at their own expense and on their own time. If employees did not comply, they would “be removed from the workplace”³ – but not necessarily be fired. If employers did not ensure compliance, they could face fines. While the plan came with a slew of sensible medical and other exceptions, it was in substance an attempt to introduce a vaccine / testing mandate into the American workforce, in the general cause of combatting Covid-19 pandemic.

The attempt failed.⁴ Six of the Court’s Justices found that no law empowered the American state to introduce a vaccine / testing mandate of this kind.⁵ Three Justices disagreed and the Supreme Court ended up split in a neat division matching the political allegiance of the President who appointed them. This is a customary observation when commenting on decisions of America’s highest Court, because it is often accused of being driven by political commitment at the expense of legal principle. I do not propose to argue one way or the other on this issue here. Rather my intention is to lay out the central arguments made in the OSHA case and to provide comment on how the judgment can inform the debate around vaccine / testing mandates in South Africa.

Why the osha case is of relevance to south africa

The OSHA case is of relevance to South Africa, because it raises generally applicable themes that animate the debate over vaccine / testing mandates in democracies worldwide. In democratic states, the route to a vaccine / testing mandate, quite apart from the strength of the moral and scientific case in their favour, is complicated by at least the following two indispensable democratic norms:

1. The power to enforce a vaccine / testing mandate must be sourced in law.

2. Laws are generally passed by legislatures, carried out by an executive authority and interpreted by the judiciary.

The question of whether a law which permits or expressly requires a vaccine / testing mandate unjustifiably limits constitutional rights in the South African context is not directly informed by themes germane to the OSHA case – so I will leave that question aside for the purposes of this brief.⁶ The OSHA case is primarily of use to South Africans because we are still managing our response to the pandemic by way of a wholesale delegation of legislative power to our executive in terms of the Disaster Management Act (DMA) – and it was the legitimate bounds of delegated government that was front and center in the OSHA case.

Delegating legislative power to functionaries in the executive branch of government is a common feature of democratic states worldwide, because the demands of modern government often legitimately outstrip the capacity of cumbersome legislative bodies. In principle, therefore, it makes good sense to allow legislative bodies to delegate their law-making power to more nimble functionaries in the executive, in order to properly manage the complexities of a modern state.⁷ Nevertheless,the benefits of representative and participatory democracy that characterise the ordinary legislative process are absent when delegated legislative power is exercised by the executive. Delegated legislation does not benefit from our elected representatives debating its merits on our behalf, nor do we get an opportunity to participate in its making directly, as we would have in the formulation of original legislation.⁸ In this way, legislatures in democracies need to be vigilant about the extent to which they delegate law-making power.

While the issue of delegated government is often commandeered by those who are sceptical about vaccine / testing mandates, this form of managing the pandemic is in fact a multi-partisan concern. South Africans who support a mandate in order to save lives and protect our public health infrastructure are not able to rely on their representatives in Parliament to speak for them. South Africans who are not supportive are similarly disempowered. And South Africans that lie in between or who have ideas on how to craft an effective mandate for the unique challenges of the South African context are no better off. Indeed, at this point in the pandemic’s management, South Africans may well feel that whatever the answer to Justice Gorsuch’s question should be, it is in fact: “not us”. The message of the OSHA case is that this is contrary to what democratic governance requires.

The American mandate’s legal setting

In the OSHA case, the Supreme Court was not faced with determining the validity of a statute, passed via ordinary legislative processes, that was explicitly intended to introduce a mandatory vaccine / testing regime into the American workforce. If that had been the case, even on the conservative majority’s own terms, the mandate would have been lawful. The mandate was instead brought about via a legislative function that had been delegated to OSHA, a ‘government agency’ that was created by the Occupational Safety and Health Act (OSH Act) just over fifty years ago in 1970. The OSH Act is OSHA’s empowering statute and it sets the boundaries of OSHA’s lawful regulation of American workplace health and safety. OSHA is headed by the US Secretary of Labour (Secretary), who is an appointee of the sitting President and a member of Cabinet.⁹ Under the OSH Act, the Secretary is empowered to, among other things, “set mandatory occupational safety and health standards” that function like laws that bind American workers and their employers. ¹⁰ These ‘Standards’ are the product of the legislative power delegated to OSHA in terms of the OSH Act.

The US legislature realised how delegating law-making power to OSHA could raise concerns about the democratic legitimacy of the Standards issued by the Secretary, so the OSH Act built in various procedural limitations on the power to issue Standards. These limitations mean that, in the ordinary course, the Secretary can only issue Standards after “notice, comment and an opportunity for public hearing”.¹¹ The OSH Act provides exceptions only in times of emergency – in which case a Standard becomes binding simply on its publication. It was this emergency procedure that the Biden Administration chose to bring about its vaccine / testing mandate.¹²

In order to make use of his emergency powers under the OSH Act, the Secretary must be able to show:

1. “That employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.”

1. “The emergency standard must be necessary to protect employees from such danger.”¹³

The meaning of these two short rules, in the context of the OSH Act, holds the answer to Justice Gorsuch’s question: “Who decides”? If a vaccine / testing mandate fell neatly into the emergency power provisions of the OSH Act, then the answer is simple: The People, via their representatives in the legislature, decide and they did so back in 1970, when they asked OSHA to regulate their workplace safety – and the judiciary cannot now meddle with that initial legislative instruction. However, the Supreme Court’s majority put forward two arguments that concluded that the People had in fact not decided that OHSA had the power to introduce vaccine / testing mandates via its emergency powers.

The Supreme Court’s first argument: “Covid-19 is not really an occupational hazard”

In the first instance, the Supreme Court’s majority read the notion of “occupation hazard” restrictively. The question here was whether OSHA was empowered to only regulate hazards that bore a direct causal relationship to the particular work of a particular workplace or whether OSHA could also regulate ubiquitous risk that manifests in the workplace as well. A central case of the former would be working with dangerous nuclear waste. A central case of the latter is Covid-19. The majority found that it was only the former, narrow, risks that fell within OSHA’s regulatory purview.

In this regard, the Supreme Court held:

“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 logic of this finding is quite limiting. This is because the same logic would appear to block OSHA from regulating workplace readiness in the face of ubiquitous risks that are plainly of concern to workers, like natural disasters. Consider that the Biden Administration realised that in certain areas of America, people were suffering high rates of death and injury due to tornado strikes. Consider further that a significant number of these deaths and injuries were occurring at workplaces, even though tornadoes, like Covid-19, present ubiquitous risk in the regions where they occur. And suppose that, as part of a general plan to reduce tornado related deaths and injuries, OSHA exercised its mandate to protect workers from tornado strikes while they are at work. Here, there appears to be no obvious overreach in the idea that an agency tasked with ensuring occupational safety issue binding Standards, even emergency ones, that ensure safe working conditions in the event that a tornado hits.

The minority tries to illustrate this by pointing out extant OSHA Standards on readiness in the event of a fire – a risk present in daily life and in the workplace. The majority responds with a non-sequitur, saying that a vaccine would be different simply because it “cannot be undone at the end of a workday”. This is true of vaccines, sure, but it is not clear why this feature of vaccines appropriately differentiates between lawful regulation from unlawful regulation of occupational safety. One can imagine easily that as part of OSHA’s fire readiness Standards, it mandated certain generally applicable safety training. It is in the very nature of safety training that it “cannot be undone at the end of a workday”, unless the employee forgets what they have learned upon leaving the office. In this way, the permanence of a workplace safety measure, without more, seems rather beside the point when deciding on the appropriate bounds of state-regulated occupational safety.

It seems far more reasonable to conceive of occupational safety in terms of risk that is thrust upon workers by the compulsory demand that they be present in their workplace.¹⁴ In the vast majority of cases, this will require regulation of risk emanating from the unique features of the work done at a particular workplace. But excluding ubiquitous risk, as a matter of principle, is no way to place a sensible limiting principle on occupational health and safety regulation. Indeed, the risk presented by Covid-19 is often aggravated in the workplace, where people spend a great deal of time together in close quarters and where they are less able to control their exposure to risk than in other aspects of daily life. Given the potential for hamstringing OSHA’s regulatory power, the minority in the OSHA case was, therefore, correct to point out that limiting the regulatory reach of OSHA in the way proposed by the majority would itself demand an express statutory injunction that was absent from the OSH Act.

The Supreme Court’s second argument: “The major questions doctrine”

In a separate judgment penned by Justice Gorsuch, in which he concurred with the majority, a more powerful way of limiting the Biden Administration’s ability to usher in a vaccine / testing mandate was put forward. The argument, I think, is able to absorb a concession that it is sensible to define occupational risk broadly to include ubiquitous risk that also occurs at work. The argument gains its force from the additional premise that a vaccine / testing mandate is just a special case of regulating an occupational risk that is so important that we cannot leave its lawfulness, as a state-led response to Covid-19, up to the vagaries of interpreting the emergency powers of a government agency. In other words, even if it is sensible to interpret the OSH Act to give OSHA the power to regulate ubiquitous risk that manifests in the workplace, it ought to remain an open question whether the OSH Act contemplated a vaccine / testing mandate as a means of doing so.

This cautious approach to interpreting the OSH Act derives from what Justice Gorsuch refers to as the ‘Major Questions Doctrine’, a tool of statutory interpretation which is designed to guard against “unintentional, oblique, or otherwise unlikely delegations of... legislative power.” This is important in the context of the OSH Act, recall, because the Biden Administration’s vaccine / testing mandate was ushered in via the emergency powers of an administrative agency, not via the ordinary legislative process. The interpretive injunction of the Major Questions Doctrine is based on the normative concern that delegated government operates at an uneasy distance from the ordinary legislative processes that the US Constitution reserves for the legislative branch. In the OSHA case, the mandate was two-steps removed from that process – avoiding express legislative pronouncement in favour of a vaccine / testing mandate and the OHS Act’s own internal public participation processes requirements.

South Africa’s major Covid-19 questions and delegated government

The concern over delegating decisions regarding major questions of pandemic management away from legislative bodies should resonate in South Africa, given that our response to the Covid-19 pandemic has been governed entirely by way of a wholesale delegation of legislative power to the executive in terms of the DMA. This response has seen our executive making the most consequential governance decisions since democracy, with enormous national impact and without any parliamentary oversight. While the constitutionality of this arrangement has survived various court challenges,¹⁵ it cannot be gainsaid that government by regulation simply does not do the work that could be done by government by law.

Engaging our ordinary legislative process to produce a vaccine / testing mandate will allow our elective representatives the opportunity to debate its merits and the most sensible way to design it for the South African context. It will also allow for the general public to directly participate. As a result, a vaccine / testing mandate produced by way of ordinary legislative processes holds the potential to be more legitimate and better informed by South Africa’s diverse interests than one produced by way of ministerial regulation.¹⁶ Indeed, given the deep disagreement in our body politic about vaccine / testing mandates, this is a particularly important time to not shrink from a searching parliamentary debate and to do the necessary work to create democratic consensus on this major question. At the time of writing, however, there is no hint that President Ramaphosa is gearing up for a parliamentary debate on the issue of vaccine / testing mandates and instead appears to be satisfied with consulting select groups.¹⁷

In any event, the absence of such parliamentary consideration may be no bar to a vaccine/testing mandate’s constitutionality or legality. The near wholesale survival of our state’s management of the pandemic under the DMA before our courts suggests that our judiciary may well not view a vaccine / testing mandate as too big a question to fall outside the scope of the legislative power awarded to the executive by the DMA. Indeed, it is arguable that the upending of South African social and economic life, by executive regulation, that occurred during Levels 5 and 4 of the pandemic made greater inroads into personal freedom than a safe and sensible public health measure like a vaccine / testing mandate would. And the heavy-handed measures of Levels 5 and 4 were almost entirely held by our courts to fall within the scope of the DMA and that they, mostly, presented justifiable limitations of rights.¹⁸

When examined against our courts’ relatively unsceptical treatment of the DMA and its provisions regarding delegated legislative power, it may well be that we do not even need parliament to act in order for a lawful vaccine / testing mandate to be issued by the state. This should trouble anyone who believes that democratic norms need to be preserved even in times of crisis.

Vaccine / Testing mandates and original legislation in South Africa

As matters stand, we do not have a state-enforced vaccine / testing mandate in any form. We have left it up to employers to introduce vaccine / testing mandates in terms of a broadly drafted duty contained in section 8(1) of the Occupational Health and Safety Act:

“Every employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees”.

It is the broadly worded text of this provision that is commonly pointed to as providing the primary legislative basis for at least permitting mandatory vaccination / testing policies in South Africa’s workplaces, while not requiring them. In June 2021, the Minister of Employment and Labour issued a Direction, under the DMA, to guide employers who interpret their section 8(1) duty to require the introduction of a vaccine / testing mandate in their workplaces – but it does not force an employer to do so.¹⁹

Given that the Occupational Health and Safety Act is a piece of original legislation, passed by ordinary legislative processes, it holds the potential for legitimising private efforts to introduce of vaccine / testing mandates in the South African workplace, where the demands of a particular workplace require them. The question, however, is whether the text and purpose of our occupational health and safety legislation is broad enough to contemplate vaccine / mandates of the sort that are now becoming common-place in South Africa – and are resulting in job losses. This should not be treated as a forgone conclusion, given the deep disagreement that exists in South Africa over the wisdom of vaccine / testing mandates. While the American Major Questions Doctrine has no clear counterpart in South African law and finds application most pertinently in the context of delegated legislation, its animating concern – that there be express legislative authorisation for major questions – is one compelling consideration even when interpreting original legislation. In other words, even South Africans who broadly support occupational health and safety legislation may well think that we still need a self-standing legislative endorsement of vaccine / testing mandates, given their inroads into personal liberty and their threat to job security.²⁰

Nevertheless, this brief proposes a sensible two-fold interpretive pathway to finding room for a vaccine / testing mandate in our existing law. First, the text of section 8(1) of the Occupational Health and Safety Act 85 of 1993 (OHSA) is certainly board enough to contemplate a notion of occupational risk that encompasses causes that arise outside of the workplace. Indeed, it is hard to square a restrictive notion of ‘occupational risk’ with any occupational safety legislation that is purpose-built to protect workers from the risks of work. Second, a vaccine / testing mandate, of the sort required to combat Covid-19 and appropriately crafted, is not so significant an inroad into the personal liberty of workers that it could not have been contemplated by the drafters of section 8(1) as potentially forming part of an employer’s duty to keep its workers safe and healthy. This may not be the case, for example, if the only prophylactic for Covid-19 were an invasive surgery or a vaccine that was prohibitively expensive, inaccessible or scientifically proven to carry significant risk of dangerous side effects.

In this way, it may be argued that South Africa’s existing labour law and its allowance for a vaccine/testing mandate by private employers in certain carefully qualified circumstances is clearly sourced in the democratic consensus that underpins section 8(1) of the OHSA. And it is crucial that we are able to point towards this consensus, as South Africans reckon with job losses and other potential hardships suffered by employees conscientiously objecting to vaccine / testing policies put in place by their employers. So far, at least two CCMA awards have come to light that have found room within our existing legislative framework for allowing employers to suspend or dismiss workers, because their conscientious objections to vaccination against Covid-19 cannot be reasonably accommodated in their workplaces.²¹ In at least one of these cases, the party challenging their suspension argued that there was no law that empowered his employer to institute a vaccine / testing mandate. In a democratic state, it is important that we are able to answer this sort of question clearly. This will better serve both the fight against Covid-19 and the preservation of our democracy.

Conclusion

Whatever one’s view of the political motivation of the nine Justices that made up the split bench of the Supreme Court in the OSHA case, it provides a moment to reflect on the value of democratic norms in times of crisis. “Who decides” when the stakes for human life and livelihoods are as high as they have been since the onset of the pandemic? “Who decides” when notions of collective well-being and individual rights collide? In democracies, the inconvenient answer, wherever one stands, is that the People, via their representatives in legislative bodies, will always need to play a meaningful role in arriving at the answer – even when this will present a risk to the right answer being arrived at timeously or even at all.

Christopher Fisher
Senior Legal Researcher
christopher@hsf.org.za

1 The case can be read here.