How risky is the office compared to everywhere else during the pandemic?
Did anyone actually give a 50-year-old federal agency — the government’s Occupational Safety and Health Administration — the legal ability to create COVID-19 vaccination-or-testing rules that could affect 84 million private sector workers?
The Supreme Court on Thursday issued a ruling that stopped the Biden administration from enforcing a requirement that employees at large businesses be vaccinated against COVID-19 or undergo weekly testing and wear a mask on the job. However, the judges are allowing the government to proceed with a vaccine mandate for most health care workers in the U.S.
If those rules had taken effect on Monday, Jan. 10, another question hovered over the Supreme Court proceedings: Would such a mandate blunt the sky-high rise in new COVID-19 infections from the omicron variant, or lead to an exodus of workers who refuse to be subjected to vaccination requirements?
Those were some of the key questions U.S. Supreme Court justices grappled with last week in arguments on the federal government’s vaccination-or-test mandate for businesses with at least 100 workers.
When it came to the disputed OSHA rules, business associations and Republican-leaning states wanted an immediate stay. They say OSHA is venturing far outside its powers with a mandate that will cause businesses to hemorrhage staff and money for compliance costs.
On the other side of the argument, the Biden administration says this moment is exactly what the OSHA was built for: Coming up with rules to protect workers when they go to work.
However, the Supreme Court begged to differ. “OSHA has never before imposed such a mandate. Nor has Congress. 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,” the court’s conservative majority wrote in an unsigned opinion.
Three-quarters of employers polled in one recent survey said they’d only go ahead with a vaccine requirement if the OSHA rules stood up in court. In a different survey, roughly one-third of businesses said if they’d only apply the mandate if required by law.
Here are three themes that emerged during last week’s arguments:
‘This is going to cause a massive economic shift’
OSHA unveiled its rules requiring either vaccination or weekly testing in early November, weeks before anyone had ever heard of the omicron variant, a highly transmissible but — thus far — less severe COVID-19 mutation.
The U.S. recorded an average of 781,203 new COVID-19 infections, up 159% over a two-week period, according to a New York Times case tracker. Hospitalizations were up 82% from two weeks prior at 145,005.
“Is that what you are doing now? To say to the public interest in this situation to stop this vaccination rule, with nearly a million people, let me not exaggerate, nearly three-quarters of a million people, new cases every day?” Justice Stephen Breyer asked the lawyer representing businesses who want the court to stay the rules. “I mean, to me, I would find that unbelievable.”
“Justice Breyer, we are asking for a stay before enforcement takes effect Monday, and the reason for that is this is an unprecedented agency action,” said attorney Scott Keller, representing the business groups.
Breyer — generally associated with the court’s liberal wing — kept up the questioning, sounding incredulous. “This is going to cause a massive economic shift in the country, billions upon billions of non-recoverable costs. Testing is also not frequently available,” Keller responded.
‘The government is trying to work across the waterfront’
The Occupational Safety and Health Administration came into being when President Richard Nixon signed a 1970 law that created the agency one year later.
Decades later, Prelogar told the court that countering workplace risk from infectious disease was “in the heartland of OSHA’s authority.” While opponents of the mandate say Congress needs to authorize COVID-19 mandates now, Prelogar said the court just had to look at the wording of the Occupational Safety and Health Act.
But a lot of time has passed since that act became law, Chief Justice John Roberts said.
“That was 50 years ago that you’re saying Congress acted. I don’t think it had COVID in mind. That was almost closer to the Spanish Flu than it is to today’s problem,” he said.
With the slew of other federal agency vaccine requirements — like the one for health care workers and federal contractors —- “it seems to me the government is trying to work across the waterfront, and go agency by agency” instead of through Congress, Roberts, generally perceived as a conservative judge, said.
If OSHA has the power, why not mandate polio and flu vaccines in workplaces too, Justice Neil Gorsuch, a conservative-leaning judge, asked. The size and scope of the COVID pandemic put it at a different plane, Prelogar said.
Judges pressed the mandate opponents on the purpose of OSHA too.
If the agency can’t protect workers from unsafe settings, what is it there for, Justice Sonia Sotomayor, identified broadly as a liberal-leaning member of the court, wondered at another point in the arguments. “What’s the difference between this and telling employers where sparks are flying in the workplace, your workers have to wear a mask?”
“When sparks are flying in the workplace, that’s presumably because there’s a machine that’s unique to that workplace,” Keller, representing the business associations, responded.
“Why is the human being not like a machine if it’s spewing a virus?” Sotomayor asked.
‘A blunderbuss rule nationwide in scope’
The OSHA mandate is “a blunderbuss rule nationwide in scope,” said Benjamin Flowers, Ohio’s solicitor general, arguing on behalf of states opposed to the mandate. He spoke remotely last Friday because he recently tested positive for COVID-19.
COVID-19 is “a danger we all simply face as a matter of waking up in the morning,” he said. So this isn’t a special workplace threat where OSHA should step in with a sweeping mandate, he said.
Justice Elena Kagan, regarded as a moderate member of the court’s liberal wing, saw it differently. Think about something like a baseball game, she noted. A person can decide to go to the game, and they can decide who they’ll go with if they want to go.
“But you can’t do any of that in workplaces. You have to be there, you have to be there for eight hours a day,” she said. A worker has to deal with the same setting and work with the same people, “who might be completely irresponsible. Where else do people have a greater risk than at the workplace?”
At another point, Justice Amy Coney Barrett, a member of the court’s conservative enclave, noted that not all jobs are created equal. The infection dangers for some are far greater, like people working at a meatpacking plant. Were businesses arguing some rules are necessary — but that the focus has to be tighter, she asked?
“Wherever that line is, [the OSHA regulation] is so far beyond that line,” Keller said.
In their commentary issued Thursday, the Supreme Court’s three liberal judges disagreed. “Acting outside of its competence and without legal basis, the Court displaces the judgments of the Government officials given the responsibility to respond to workplace health emergencies,” Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor wrote in a joint dissent.
(The Associated Press contributed to this report.)