Patient receives Covid-19 vaccine.

NFIB v. OSHA and Its Contradiction with the GOP’s Disability Employment Agenda

By Doron Dorfman

The COVID-19 pandemic has highlighted the incoherence of the Republican party’s employment agenda, which, on the one hand, deifies full, in-person employment, and, on the other, makes the workplace hostile to this aim through relentless deregulation.

Throughout the pandemic, the GOP has vocally advanced the narrative that employees must physically return to the office to prevent recession.

Additionally, the conservative view frames disability law and policy in terms of its economic value: these policies are desirable insofar as they increase productivity and participation in the job market among disabled Americans.

For example, the Americans with Disabilities Act (ADA) was sold to Republicans as a welfare reform aimed at reducing governmental expenditures by get­ting people with disabilities off welfare and into the labor market.

This could not have been clearer than in the words of then-Senator Lowell Weicker (R-CT) in a 1989 discussion before the Commission on Labor and Human Recourses on enacting the ADA: “The economic return to society when people get off the welfare rolls and become employed cannot be overstated.”

But conservative jurisprudence during the pandemic, such as the Supreme Court’s decision in NFIB v. OSHA, is at odds with the goal of full, in-person employment.

The decision, which was handed down on January 13, 2022, stayed the Occupational Safety and Health Administration Emergency Temporary Standard (OSHA ETS), which required either vaccination or testing for employers with over 100 employees.

The OSHA ETS, which was part of the Biden administration’s larger efforts to curb the COVID-19 pandemic, along with other protections like mask wearing and social distancing, made the connection between vaccine status and physical participation in the workplace.

Covered employers would have been required to actively encourage their employees to get vaccinated, and to provide employees with paid time off to allow them to receive the vaccine. Those employees who wished not to get vaccinated would have had to produce a weekly negative test to be allowed at the workplace.

Having a workplace where the vast majority of employees are vaccinated and masked is the only way that disabled employees, many of whom are at higher risk for death or serious illness from COVID-19 than the general population, can safely return in-person. It has been shown that private employers, like United Airlines, who independently required their employees to get vaccinated (a policy initially upheld by a Texas district Court but later remanded for reconsideration by the Fifth Circuit, which ruled that the mandate “coerced [some employees] to violate their religious convictions”) increased the number of vaccinated employees and eliminated hospitalization and death among the vaccinated. For many disabled employees, this type of policy would have made a huge difference in ensuring their safe return to the physical workplace.

Thus, the decision in NFIB v. OSHA, which was commandeered by the conservative wing of the Supreme Court, thwarts the conservative policy goals of increasing disabled Americans’ productivity and active participation in the job market.

This isn’t the only contradiction at stake: from an economic point of view, the OSHA ETS vaccination requirements probably would have saved the government some money. As it was written, the ETS externalized the costs of vaccination and testing to private employers. These efforts would have not only alleviated a financial burden, but they also may have addressed the problem of vaccine access, which is still a concern, particularly for people with disabilities.

According to a CDC survey-based study from October 2021, people with disabilities were more likely to endorse the use of vaccines, but were also more likely to report difficulties in getting vaccinated, compared to non-disabled individuals. Under the OSHA ETS, it would be in large employers’ interest and legal obligation to facilitate access to vaccination for all employees, including disabled employees, who tend to experience more difficulties in this regard.

Outside of the statutory interpretation and administrative law questions that NFIB v. OSHA raises, it is important to contextualize the decision in terms of the long-held views of the GOP regarding disability law and policy. Looking at this decision through a disability legal studies lens reveals the contradiction between the push to get back to in-person work and participation of disabled employees in the labor market.

The contradiction is resolved in the big-picture view: pushing disabled individuals into an unsafe workplace is part and parcel of what disability rights scholars and advocates have identified as “the new eugenics.” Since the early days of the pandemic, COVID-19 policies have brazenly, repeatedly subordinated the interests and lives of people with disabilities, older adults, and immunocompromised individuals. Deregulation and the relentless pursuit of capital are perfectly consistent with this end.

Doron Dorfman is an Associate Professor of Law at Syracuse University College of Law.

The Petrie-Flom Center Staff

The Petrie-Flom Center staff often posts updates, announcements, and guests posts on behalf of others.

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