In the Case That Blocked OSHA’s Vaccine Mandate, the Justices Disagreed About When COVID-19 Counts As a Workplace Hazard

Three dissenters argued that yesterday’s Supreme Court decision to block enforcement of Biden’s mandate regarding vaccines for private employers meant the majority overrode the judgement of those who have the best knowledge about how workplaces can be made safe. The majority of the people saw that the dissenters would allow bureaucrats to exercise broad powers Congress has never granted them.

This split is rooted in the question whether COVID-19 can be considered a workplace hazard and should therefore be regulated by the Occupational Safety and Health Administration. OSHA’s regulation of COVID-19, as opposed to a common risk Americans face every day, goes beyond the agency’s statutory mandate. Each justice agreed OSHA doesn’t have a general license for public health. All agreed OSHA also has the ability to tackle COVID-19 workplace-wide. While the OSHA dissenters agreed to allow OSHA to define the problem broadly, justifying a wide-ranging solution that covered 84 million workers, most believed the agency had to be specific and more discriminating.

OSHA published a rule on November 5 that requires companies employing 100 people or more to require their employees to either be vacinated or to wear masks or submit to weekly viral testing. OSHA presented the edict to employees as an emergency temporary standard (ETS). This avoids the normal rule-making process and requires OSHA prove that the regulations it has issued are necessary to safeguard them from “grave hazards” at work. OSHA is not able to fulfill these criteria, and has therefore rarely utilized this option.

“Prior to the emergence of COVID–19,” the Supreme Court notes in its decision imposing a stay on the vaccine mandate, OSHA “had used this power just nine times” and “never to issue a rule as broad as this one.” Only one of these nine emergency standards was fully accepted by the court. Justice Neil Gorsuch in his concurring opinions noted that these rules dealt with the “dangerous unique hazards inside the workplace, such as asbestos or rare chemicals.”

OSHA had previously released regulations that dealt with communicable diseases. It issued in 1990 a no-emergency rule dealing with bloodborne disease. Last June, OSHA published the COVID-19 ETS. Both of these rules were designed to safeguard employees from special risks due to the nature of their jobs (handling COVID-19 patients and handling blood samples), but employers weren’t required to mandate vaccination. That is something OSHA, which has existed for more than half a century, has never done before—a point that the justices emphasized during oral arguments last week and again in yesterday’s decision.

The Court points out that OSHA never has imposed such an order. Congress has never done so. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here….In fact, the most noteworthy action concerning the vaccine mandate by either House of Congress has been a majority vote of the Senate disapproving the regulation on December 8, 2021.”

Justices Stephen Breyer and Sonia Sotomayor argue in a joint dissension that OSHA’s extraordinary rule is justifiable by the unimaginable threat COVID-19 presents to OSHA:

The Standard responded to a unique workplace health emergency in its history. COVID-19, an infective disease that has claimed the lives of hundreds of thousands of Americans and sickened millions more, was transmitted to the Standard in response to the need to address the problem. Over the past two years, COVID-19 has affected—indeed, transformed—virtually every workforce and workplace in the Nation. Both employees and employers have acknowledged and addressed the unique risks associated with transmission within work environments. It is perverse, given these circumstances, to read the Act’s grant of emergency powers in the way the majority does—as constraining OSHA from addressing one of the gravest workplace hazards in the agency’s history.

Even as Breyer et al. Breyer et al. Dissenters claim that this basic fact justifies OSHA’s wide approach because coronavirus is “spread mostly without regard to different occupations or industries.”

Nevertheless, the majority believes that such legal differences are crucial. OSHA agrees with this to a certain extent. OSHA also exempts employees from working outside or at home. The Court points out that these exemptions “are largely illusionary.” OSHA, however, estimates that only nine percent of landscaping and groundskeepers are allowed to work exclusively outdoors. If they briefly enter an indoor space at the beginning of the workday, that is enough to trigger OSHA’s vaccine-or-mask-and-test requirement. This applies even to consultant workers who are primarily remote but only visit the office on occasion.

A majority also stated that OSHA failed to make clear distinctions among different types of work settings, which pose different risk factors for transmission. COVID-19 may be present in many workplaces but is not considered a serious risk. OccupationThe Court states that there is a hazard for most. “COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. The risk of this universality is not different to the daily dangers we face due crime, pollution and other communicable diseases. 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 majority thinks “it is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace.” Breyer et al. Breyer and colleagues. The majority of respondents respond that a mandate for vaccination is quite different from the OSHA workplace regulations. The majority responds that a vaccine mandate cannot be reversed after completing a working day.’…Contrary to the dissent’s contention, imposing a vaccine mandate on 84 million Americans in response to a worldwide pandemic is simply not ‘part of what the agency was built for.'”

However, the majority of respondents acknowledge that OSHA is authorized to deal with COVID-19 within certain circumstances.

Because of certain features, the virus can pose a particular danger to those who are particularly vulnerable.
Targeted regulations that are permissible for an individual’s workplace or job are clearly permitted. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. OSHA can also manage risks related to working in cramped and crowded areas. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face. OSHA’s indiscriminate approach fails to account for this crucial distinction—between Occupation risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an “occupationalSafety or Health Standard

Gorsuch, who was joined by Justices Clarence Thomas, Samuel Alito and Samuel Alito in a concurring opinion, highlights the more fundamental issue raised by the argument regarding OSHA’s legislative authority. Under the doctrine of “major Questions”, Congress has to “speak clearly in order to give agency decisions with ‘economic and/or political significance’. Nondelegation doctrine demands that Congress establish an “intelligible principal” for guiding administrative agencies in the creation of regulations. Gorsuch states that these two doctrines aim to maintain the separation between powers and prevent the executive branch exercising legislative powers that are properly Congress’.

Unelected judges in this instance are second-guessing expert judgements of executive agencies charged by Congress with protecting workers. Gorsuch sees bureaucrats taking decisions that should have been made by elected representatives.

Gorsuch wrote that the Court was not an authority for public health. “But it is charged with resolving disputes about which authorities possess the power to make the laws that govern us…The question before us is not how to respond to the pandemic, but who holds the power to do so. This is the clear answer: According to current law, this power lies with Congress and the States, not OSHA.