In the Case That Blocked OSHA’s Vaccine Mandate, the Justices Disagreed About When COVID-19 Counts As a Workplace Hazard
When the Supreme Court blocked enforcement of the Biden administration’s vaccine mandate for private employers yesterday, the three dissenters said the majority was recklessly overriding the judgment of experts who know best how to make workplaces safe. But as the majority saw it, the dissenters were ready to let unelected bureaucrats exercise sweeping powers that Congress never gave them.
Underlying that split is the question of whether and when COVID-19 counts as a workplace hazard, justifying regulation by the Occupational Safety and Health Administration (OSHA), as opposed to a general risk that Americans face throughout the day, which goes beyond that agency’s statutory mission. All of the justices agreed that OSHA does not have a general license to protect public health, and all of them agreed that the agency does have the power to address COVID-19 in the workplace. But while the dissenters were willing to let OSHA define that problem in general terms, justifying a broad solution covering 84 million employees, the majority thought the agency was obliged to be more specific and discriminating.
OSHA’s rule, which it published on November 5, demands that companies with 100 or more employees require them to be vaccinated against COVID-19 or wear face masks and submit to weekly virus testing. It presented that edict as an “emergency temporary standard” (ETS), which avoids the usual rule-making process but requires OSHA to show that its regulations are “necessary” to protect employees from a “grave danger” in the workplace. Those criteria are not easy to satisfy, which helps explain why OSHA has rarely used 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.” Of those nine emergency standards, “six were challenged in court, and only one of those was upheld in full.” As Justice Neil Gorsuch notes in his concurring opinion, those rules all dealt with “dangers uniquely prevalent inside the workplace, like asbestos and rare chemicals.”
OSHA has previously issued regulations that addressed communicable diseases. In 1990, it issued a nonemergency standard dealing with bloodborne pathogens, and last June it published a COVID-19 ETS for the health care industry. But both of those rules aimed to protect employees who faced special hazards because of the nature of their work (handling blood samples and treating COVID-19 patients, respectively), and neither encouraged nor required employers to make vaccination mandatory. 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.
“OSHA has never before imposed such a mandate,” the Court notes. “Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any m
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