WASHINGTON—With the federal “emergency temporary standard” for COVID-19 workplace safety scheduled to begin on Jan. 10, the Supreme Court heard oral arguments January 7 on whether to issue a stay delaying it from going into effect.
The standard, issued by the Occupational Safety and Health Administration last Nov. 4, applies to employers with 100 or more workers. It will begin by requiring unvaccinated workers to wear masks on the job, and as of Feb. 9, they will have to either get vaccinated or get regular tests.
The National Federation of Independent Businesses (NFIB) and the state of Ohio, lead applicants among the 25-odd trade organizations and 27 states challenging the rules, argued that OSHA far overreached its authority in issuing the emergency standard, and that the vaccine-or-test mandate would irreparably damage businesses and is not truly “necessary.”
Solicitor General Elizabeth B. Prelogar, arguing on behalf of OSHA, countered that COVID-19 is the worst public-health crisis in the last century, and that vaccination is the most effective way to stop the spread of a contagious disease. The Occupational Safety and Health Act of 1970, she added, authorizes the agency to take emergency measures to protect workers from “physically harmful” substances or agents that put them in “grave danger.”
Opponents contend that the 1970 law did not authorize OSHA to create such a far-reaching standard. The agency has never mandated vaccines before, NFIB attorney Scott A. Keller told the Court, and it will affect 1.8 million employers and 84 million workers. He averred that only Congress or the states could order people to undergo a medical procedure, and called the standard a “one-size-fits-all” rule, saying that OSHA should have narrowed it to high-risk industries.
Pressed by Justice Amy Coney Barrett about whether there would be a valid “grave danger” in high-risk occupations such as meatpacking and health care, Keller said there would, but “wherever that line is, this emergency temporary standard is far beyond it.” He argued that OSHA did not have the power to order mandatory testing or masks in the workplace either.
“COVID is the deadliest pandemic in American history,” Prelogar responded. And there is “overwhelming scientific and medical evidence,” she added, that because of the way the virus is transmitted, workers in enclosed areas where they have no control of social distancing or whether their coworkers are vaccinated are in grave danger of being infected.
The 1970 OSHA law mentions immunization, she said, and the American Rescue Act passed last year appropriates money for the agency to enforce COVID-safety regulations.
The three more liberal justices emphasized the enormity of the pandemic, while the six more right-wing justices focused more on whether OSHA had the legal power to issue sweeping standards. Justice Samuel Alito wondered whether OSHA was “trying to squeeze an elephant into a mousehole” by regulating COVID as a workplace danger when it is widespread everywhere. OSHA’s mandate is workplace safety, he said, but workers stay vaccinated when they leave the job.
Justice Neil Gorsuch expressed similar sentiments, and asked why OSHA hasn’t mandated polio or flu vaccines. Virtually all workers are vaccinated against polio, Prelogar said, and influenza is not anywhere near as dangerous as COVID — but things would be different if the nation was faced with “another 1918.”
“This is not a workplace danger,” Ohio Solicitor General Benjamin N. Flowers told the Court. Asked by Justice Elena Kagan if he knew of any workplace that hadn’t been transformed by the pandemic over the past two years, he answered that COVID does not originate in the workplace, and the risk comes from contact with other people.
Flowers added that vaccination “cannot be undone” and that vaccines have not been effective at stopping the Omicron variant. What’s the “grave danger,” he asked, when unvaccinated people aged 18 to 29 have a lower risk of dying of COVID than vaccinated people 50 to 64?
OSHA, in its brief to the Court, called that cherry-picking federal Centers for Disease Control data. According to the same set of CDC figures, it said, the death rate for unvaccinated people 30 to 49 years old “is six times that of vaccinated people between 50 and 64,” and the death rate for unvaccinated 18-to-29-year-olds was 17 times that of vaccinated people the same age. As of late November, it added, unvaccinated people 18-49 were hospitalized for COVID at almost seven times the rate for vaccinated people 50-64.
Will the Court issue a stay?
The Court will not rule on the merits of the standard, just on whether to issue a stay preventing it from going into effect until the courts rule on whether it is valid. The two legal principles here are whether the applicants have strong enough arguments to have a solid chance of winning, and whether delaying the standard would be more damaging than letting it go into effect. The Fifth Circuit Court of Appeals issued a stay on Nov. 6, but the Sixth Circuit dissolved that stay on Dec. 17.
“We need a stay,” Keller said. The association’s members will have to begin filing their plans for how to comply on Jan. 10, he said, and unvaccinated workers will need to get two doses by Feb. 9.
“How can it conceivably be in the public interest?” Justice Stephen Breyer had asked him earlier, noting that on Jan. 6, there had been more than 700,000 new COVID cases reported, ten times as many as when OSHA published the standards, and more than half the people hospitalized with infections were unvaccinated.
States and businesses can still take action, Keller had answered.
“Workplace clusters of COVID-19 cases continue unabated,” a group of unions including the AFL-CIO, the United Food and Commercial Workers, SEIU 32BJ, and North America’s Building Trades Unions said in a brief filed with the Court on Dec. 30. “In Michigan, for the week ending December 20, there were 99 new outbreaks in workplace settings such as long-term care, K-12 education, corrections, and health care, and 638 ongoing outbreaks in those settings. Tennessee reported 250 active COVID-19 outbreaks on December 20, 144 of which were in work settings. In Washington State, 80 of 84 new outbreaks reported during the week of December 5-11 were in workplace settings outside of health care, a 175% increase in two weeks.”
Meanwhile, on Jan. 5, a group of unions including the AFL-CIO, the American Federation of Teachers, National Nurses United, and the American Federation of State, County, and Municipal Employees filed a petition in the D.C. Circuit Court of Appeals, asking it to order OSHA to issue a permanent standard requiring employers to protect health-care workers against COVID-19.
OSHA issued an emergency temporary standard covering health-care workers on June 21, 2021, but did not make it permanent, and announced on Dec. 27 that it planned to rescind it.
“COVID-19 hospitalizations have increased nearly sixfold in the last six months,” AFL-CIO President Liz Shuler said in a statement. “In the face of the Omicron variant, it is not the time to roll back protections, but to fully enforce and make them permanent. We have no choice but to turn to the courts to ensure that our health-care workers are protected as they provide such critical care throughout this pandemic.”
In late May, a month before OSHA issued the emergency standard, the federal Centers for Disease Control and Prevention reported that more than 490,000 health-care workers had contracted COVID-19, and 1,611 had died from it, the unions said. By Dec. 30, “those numbers had almost doubled,” with more than 800,000 health-care workers contracting the virus and 3,063 dying from it.