Today’s Supreme Court debated whether the court should stop enforcement of the COVID-19 vaccine rule that the Biden administration has issued for private employers, until legal challenges to the policy have been resolved. Most justices agreed that OSHA exceeded its statutory authority in requiring companies that employ 100 people or more to vaccinate or use face masks and undergo weekly virus testing.
Chief Justice John Roberts stated that the Biden Administration has placed a number of mandates on federal employees and contractors. This includes health workers as well companies covered by OSHA. “It looks to me like the government wants to work across the shore,” he stated. This sounds exactly like what the States should, or should, be doing.
Justice Neil Gorsuch acknowledged that the administration appears to have used legal pretexts in order to establish what amounts to an overall vaccine mandate, which Congress has so far declined to either impose or authorize. Gorsuch stated that Congress has been given a year in which to address the issue of vaccine mandates. It appears that as a compromise, the federal government goes agency by agency. OSHA’s regulation relies upon a statute “50 years old”, and doesn’t address this issue. He stated that vaccination mandates have been the responsibility of states for a long time.
Roberts, Gorsuch and other justices raised concerns that echoed those of the plaintiffs. The OSHA regulates workplace risks. However, the President decided that OSHA should regulate this danger. OSHA was then instructed by Benjamin Flowers, Ohio Solicitor General. The vaccine mandate was the result. It is a national blunderbuss regulation that demands the same thing from all covered employers regardless of what steps they have taken to protect their employees. [that]Local and state officials can understand and help more effectively.
OSHA’s November 5th published an Emergency Temporary Standard (ETS), that bypasses the normal rule-making process. ETSs are immediate in effect and do not need to be published before the public is notified. OSHA must show OSHA that it is necessary to safeguard employees against a “grave threat” at work in order to benefit from this rarely-used shortcut.
The U.S. Court of Appeals for the 5th Circuit, which stayed the ETS the day after it was published, said it “grossly exceeds OSHA’s statutory authority.” But after the challenges to the mandate were consolidated and assigned to the U.S. Court of Appeals for the 6th Circuit, a divided three-judge panel lifted the 5th Circuit’s stay, which is how the case ended up at the Supreme Court.
The “major question” doctrine was the focus of much of today’s discussions. It states that Congress has to “speak clearly” if it wants to make decisions about agencies with great “economic and political importance.” OSHA’s rule—which applies to 84 million employees, two-thirds of the work force, across many different industries and workplaces—certainly seems to qualify as a major question. Gorsuch wondered “If there’s an ambiguity”, “why isn’t this a big question that belongs to people’s representatives in states and in Congress?”
Elizabeth Prelogar, Solicitor General, argued that employees and businesses who are challenging the mandate do not have cited “a structural or textual problem” which would justify invoking major questions doctrine. Faced with “the largest threat to workers in OSHA history,” Prelogar stated that the agency was simply using powers Congress has granted.
However, several justices were skeptical. Clarence Thomas, Samuel Alito and Amy Coney Barrett stressed that an ETS is necessary in order to treat a “grave risk.” It is harder than the OSHA standards for addressing a “grave danger”.
Scott Keller was a former Texas solicitor-general who spoke for the businesses challenging OSHA’s edict. necessaryAn ETS definition of “essential or essential” means that it must be indispensable, not just useful. OSHA could, he suggested, use COVID-19 in context of an ETS to justify policies more extensive than the vaccine mandate. Keller suggested that OSHA might have instituted a “national work lockdown” at the outbreak of the pandemic.
Prelogar acknowledged that to show necessity, there must be “some degree of tailoring.” She rejected, however, the claim of plaintiffs that OSHA should distinguish between industrial and commercial workplaces on the basis of COVID-19 hazards they face.
Prelogar stated that there is a grave risk of the virus being transmitted to anyone who gathers indoors. “There are certain workplaces—factories, assembly lines—where the risk is graver [and]Transmission is more likely. However, I do not think this is in question. [OSHA’s]It is determined that there exists a grave risk at any job site that could allow for transmission.
Justice Stephen Breyer observed that OSHA has exceptions to the rule for employees who are only at work or outdoors. Keller pointed out, however, that most people working in outdoor jobs, like landscapers or highway workers are covered under the OSHA mandate, even though they spend only a small amount of time inside each day. Keller stated that OSHA did not do an industry-by-industry analysis of COVID-19 risks and exempted smaller companies with less than 100 employees. However, the “grave risk” OSHA describes doesn’t suddenly vanish below this threshold.
Keller also said that OSHA is unable to determine whether middle-aged people who have been vaccinated are in a “grave risk” of COVID-19. However, it has determined that younger workers, who were not vaccinated, are more at high risk than those who have been vaccinated. The government data shows that they are almost equally susceptible to dying from the disease. Keller also pointed out that 65-year-olds who have been vaccinated are more likely to die from COVID-19 than those aged 65 and older. higherRisk from COVID-19 is greater than that of unvaccinated 18–49-year olds
Justice Sonia Sotomayor stated that these “apples to oranges” comparisons do not apply, however they directly address the legal basis for the vaccine or-test requirement. Prelogar admitted that “the grave danger finding” is only for unvaccinated employees. OSHA is looking at both the risks they are taking and the potential dangers they present to others, Prelogar said. However, OSHA’s rule does not protect vaccinated employees, though it might inadvertently have this effect.
Keller raised questions about the belief that vaccines can prevent the transmission of viruses. She pointed out that employees who have been vaccinated may be infected with the highly contagious micron variant. Breyer, however, pointed to the current outbreak of omicrons as the reason for the mandate’s implementation. According to Breyer, the mandate raises legal questions that are difficult and could take time to solve. With hospitalizations on the rise and cases increasing, he wondered if it was in the public interests to order an immediate stay. It was unbelievable to me,” he stated.
Plaintiffs claimed they needed relief because employers will have to comply with OSHA’s mandate Monday to retain workers against vaccination. Keller stated that workers will leave as soon as the ETS goes into effect. There will also be economic and national consequences.
Sotomayor stated that ETS was not an “employer mandate” and employers could instead request testing or masking. However, this adds burdens to employers who might decide that it is more manageable to have a vaccine requirement. OSHA requires employers to cover workplace safety measures, but in this instance OSHA allows them to charge workers for testing. This gives them an additional incentive to get vaccinated.
Biden has said that the ETS is part of its strategy for “vaccinating those who are not vaccinated.” OSHA, however, says it supports this policy. Prelogar admitted that OSHA’s “encouragement to vaccination” rule is key to its success. Justice Elena Kagan also stated that OSHA aims to encourage vaccination because this is the best way to protect against COVID-19.
OSHA has not required, nor encouraged, employers to mandate vaccination, as many justices observed. OSHA did issue a COVID-19 ET for health care workers in June, and also addressed bloodborne diseases through its usual rule-making processes in the 1990s. Roberts stated, “This is something that the federal government never did before.” Alito said that OSHA is doing something fundamentally new with the vaccine rule. OSHA previously required protective clothing for workers, but this was only a temporary measure. The vaccination rule, however, is “all-encompassing” and affects employees.
Gorsuch made the same point regarding OSHA trying to decrease risk. According to him, OSHA’s rules for workplace hazards have always been unique and specific to that particular workplace. They don’t affect individuals 24 hours per day. Flowers also noted that coronavirus exposure is a danger when people wake up and go out with their families. OSHA should “cite any aspect of the workplace that presents a risk to a different nature” in order for an ETS to be justified, Flowers said.
Sotomayor responded to that argument, noting that unlike other circumstances where people may be exposed to COVID-19 in other settings, work is mandatory and involves “the mixture of many people all going to one indoor space, having to deal with one another for eight hours.” You have to go with people that you don’t really know and might find irresponsible. She said that COVID-19 is a workplace risk and it’s sensible to consider this.
Kagan said that judges should not second-guess OSHA’s judgement because they lack the necessary expertise and are politically ineligible. “Courts are not elected [and]She said that she had no expertise in epidemiology. She said, “Why would the courts make this decision?”
Gorsuch stated that the problem isn’t what the decision should look like, but who is legally allowed to make it. The question isn’t, “What’s this country doing about COVID?” He said. “It’s who gets to decide that….It’s not that judges are supposed to decide some question of public health. This is about the regulation of the system in order to make sure that the right party follows them.
Keller, for his part, questioned whether OSHA—rather than, say, the Department of Health and Human Services—actually has the appropriate expertise. “Is it the agency which has expertise on communicable diseases?” He inquired. “No, it’s not.” He said that an “unique federal agency charged with occupational standards” was not possible. commander [Is this the wrong word/does it merit a sic?] businesses economy-wide into becoming de facto public health agencies.”
Flowers admitted that OSHA could have jurisdiction to tackle COVID-19 with a more careful calibrated approach, but he said that OSHA’s ETS ignores the distinctions that OSHA legally has to take into account. He stated that a blanket rule was not needed to safeguard employees from grave dangers, like the emergency provisions require. Let me be very clear [that]OSHA and the States share OSHA’s goal to stop this pandemic. The agency can’t pursue this noble goal illegally.