Swift and thorough White House review of vaccine mandate is critical

Last week, it was reported that the Occupational Safety and Health Administration (OSHA) sent its regulation requiring employers with more than 100 employees to mandate vaccines for their workers to the White House for final review. While it is entertaining to envision President Biden or Vice President Harris burning the midnight oil reading the justification for an OSHA Emergency Temporary Standard, that is of course not exactly what this news signifies.

The regulation was sent to the Office of Information and Regulatory Affairs (OIRA — where I worked from 1998-2003, part of the time reviewing OSHA regulations). OIRA is part of the Office of Management and Budget (OMB) which in turn is part of the Executive Office of the President. OIRA has been empowered by the President since 1981 to review agency regulations. In conducting this review, OIRA will focus on three tasks.

First, and most famously, OIRA will review the agency’s analysis of the underlying economic consequences of the regulation. The vaccine mandate is classified as an “economically significant” regulation meaning that it will have an impact on the economy of more than $100 million, and OSHA is therefore required to estimate the costs and benefits of the regulation. The analysts and economists at OIRA will ensure that this analysis is thorough and clear. In doing so, they will also work to ensure the regulation accomplishes its goals as cost-effectively as possible and is likely to withstand inevitable court challenges.

But OIRA will also ensure that the regulation is in keeping with the president’s priorities. On such a high-profile regulation, President Biden is sure to be credited if it helps reduce the incidence of the virus — and blamed if it doesn’t. And the devil is often in the details. OIRA will share the regulation with White House officials who will be concerned with whether the details of the vaccine requirement match up with what the president had envisioned when he directed OSHA to issue it. 

OIRA will also share the regulation with other federal agencies. One might imagine that the Centers for Disease Control will be very interested in the contents of the regulation, as will the Small Business Administration (despite the exemption for employers with fewer than 100 employees).

The benefits of OIRA review are considerable. While the experts at OSHA are best qualified to understand the law surrounding workplace safety, the vaccine mandate raises numerous complicated legal issues and policy questions such as payment for vaccines and recordkeeping requirements. The more different perspectives that can be brought to bear on these questions, the less likely a legal challenge is to succeed.

And that is critical.

I have not seen the economic analysis of the regulation, but I suspect that the benefits (particularly the expected lives saved) are considerable and significantly outweigh the costs. But if a legal challenge overturns the OSHA vaccine mandate, then no lives are saved by it and there are no benefits. OIRA review increases the chances that the regulation will achieve its desired goals.

That said, an OIRA review that drags on for months also reduces the benefits.

COVID-19 is a problem now. While infection rates, hospitalization rates, and deaths from the pandemic are all declining, we are not out of the woods yet. The best way to ensure that the next wave of the pandemic is less severe and less extensive than previous waves is through vaccinations. While OIRA is given 90 days to review regulation (and occasionally takes longer), taking that long will mean the standard is not implemented until far too many more people are infected.

The job ahead for OIRA is not easy. They have to be thorough, inclusive, and fast. The success of the OSHA standard depends on all three.

Stuart Shapiro is professor and director of the Public Policy Program at the Bloustein School of Planning and Public Policy at Rutgers University, and a member of the Scholars Strategy Network. Follow him on Twitter @shapiro_stuart.