Supreme Court: Fewer COVID Vaccines, More Shirtwaist Factory Fires!

// woman check the fire extinguisher expiration date at homeRichard Nixon signed OSHA (the “Act”) into law in 1970. So we’re 52 years into the understanding that Congress authorized OSHA (the “Administration”) to issue regulations to protect workers from all manner of workplace injury. But for a Supreme Court majority that reads Upton Sinclair’s The Jungle with the same longing affection most reserve for their wedding day, workers falling into vats of acid is a small price to pay to make sure Linda from La Cueva is comfortable giving the cancer patient in the next cubicle a fresh dose of lung failure.

While state governments have the authority to issue a blanket vaccine mandate — or at least they did for 100 years until this Court decided that viruses don’t spread in Sunday School — the federal government can’t. However, the federal government does have recognized authority to mandate that large employers keep workers safe from threats that enter their workplace. It wasn’t a perfect solution, but since “working” is where the vast majority of people interact and unlike, say, movies or sporting events, it’s an activity that most people HAVE TO DO TO LIVE.

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They even call it “making a living.”

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The Supreme Court decided to strike that down yesterday and, in a testament to the sort of “by-the-bootstraps” personal responsibility that defines the modern conservative movement, the majority issued a Per Curiam opinion to prevent any one justice from having to admit authorship. Nice.

That the Court struck down the mandate isn’t particularly surprising. What was surprising was the lazy and slapdash reasoning the (deliberately) unnamed author churned out. A diligent justice could concoct some nuanced reason to kill this rule. Maybe a procedural hiccup could sentence it to regulatory limbo? It’s disingenuous, but at least it’s an effort. Instead, this…

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The Solicitor General does not dispute that OSHA is limited to regulating “work-related dangers.” Response Brief for OSHA in No. 21A244 etc., p. 45 (OSHA Response). She instead argues that the risk of contracting COVID–19 qualifies as such a danger. We cannot agree. Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.

I know that reads like a parody of a FedSoc essay, but I assure you it’s the actual reasoning the majority settled on out of all the options available to throw a wrench in the works of this vaccine rule.

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For the record, OSHA would prevent people from being able to carelessly throw wrenches into the works. Correction: OSHA used to prevent that.

Here’s the dissent rewriting the above paragraph:

The Court does not dispute that the statutory terms just discussed, read in the ordinary way, authorize this Standard. In other words, the majority does not contest that COVID–19 is a “new hazard” and “physically harmful agent”; that it poses a “grave danger” to employees; or that a testing and masking or vaccination policy is “necessary” to prevent those harms. Instead, the majority claims that the Act does not “plainly authorize[]” the Standard because it gives OSHA the power to “set workplace safety standards” and COVID–19 exists both inside and outside the workplace. Ante, at 6. In other words, the Court argues that OSHA cannot keep workplaces safe from COVID–19 because the agency (as it readily acknowledges) has no power to address the disease outside the work setting.

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Every. Single. Textual. Marker. The majority concedes every one of them before inventing, for the first time in history, some legislative intent to limit “work-related dangers” to injuries that cannot happen anywhere but on the job.

Returning to that epic majority paragraph:

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Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most.

Perhaps the majority signed this opinion Per Curiam because it really sprung from a thousand monkeys at a thousand typewriters. Substituting “risk” for “hazard” and “in many workplaces” for “occupational” doesn’t actually make the two halves of that sentence different. Here, let me try one: Although the danger of being run over by a garbage truck occurs on roads, it is not a thoroughfare threat.

COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.

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The future of OSHA. (via Frinkiac)

So, and I mean this quite literally: *cough* OSHA does have air pollution regulations. Indeed, OSHA covers all sorts of injuries that could otherwise occur “at home, in schools, during sporting events, and everywhere else that people gather.”

Like, I dunno, FIRES!

That was my first thought when I read this bizarre paragraph. Apparently the dissenting justices reached the same conclusion:

Consistent with Congress’s directives, OSHA has long regulated risks that arise both inside and outside of the workplace. For example, OSHA has issued, and applied to nearly all workplaces, rules combating risks of fire, faulty electrical installations, and inadequate emergency exits— even though the dangers prevented by those rules arise not only in workplaces but in many physical facilities (e.g., stadiums, schools, hotels, even homes).

For good measure, since the conservatives seem uncharacteristically interested in legislative intent, the dissent also cites the fact that Congress recently put OSHA in charge of COVID-related projects. But logic doesn’t exist in this dojo, does it?

All of which places the Court in the comi-tragic position of answering the dissent with… whatever this is:

The dissent contends that OSHA’s mandate is comparable to a fire or sanitation regulation imposed by the agency. See post, at 7–9. But a vaccine mandate is strikingly unlike the workplace regulations that OSHA has typically imposed. A vaccination, after all, “cannot be undone at the end of the workday.” In re MCP No. 165, 20 F. 4th, at 274 (Sutton, C. J., dissenting). 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.” Post, at 10.

Here’s the thing: “cannot be undone at the end of the workday” would have made for a better argument from the outset. At least there’s a colorable argument that there’s some difference between placing a HazMat suit in a locker and getting a vaccine.

But the majority understood, correctly, that if it rested on this logic, the administration would come back with a sweeping mask mandate that would trigger the Court’s MAGA audience even more. So “can’t regulate anything that can injure people outside of the office” had to remain the central holding.

Ideally, in a common law system, judges consider the repercussions of their reasoning. If the majority had just tied this up in endless, repeated procedural delays, it could functionally kill the mandate — its desired political outcome — without compromising the stability of the legal landscape going forward. But instead it opted to aggressively deviate from both precedent and statutory text and decide that OSHA can’t cover anything that might hurt someone outside of the office.

No employer is drafting a lawsuit challenging fire exits (probably!), but how soon until someone goes after air quality standards? Complains about asbestos removal? Or protests that the wiring demands are too costly. People can breathe in pollution, get exposed to asbestos, and electrocute themselves anywhere. What is the substantive legal reasoning to maintain those regulations and not this one? In the haste of the conservative justices to juice book sales with an endorsement from Joe Rogan, they eviscerated a workable footing for most of the country’s safety regulations.

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.

True… have other health threats of this magnitude come up in that time? It would be a really good argument for the majority if, I don’t know, there’s a threat of the same magnitude out there killing hundreds of thousands of people each year that OSHA ignores. That would be a real “game over” argument. I guess no justice tried to make that argument, huh?

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Topics

Courts, COVID-19, OSHA, Supreme Court, Vaccines


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Originally posted on: https://abovethelaw.com/2022/01/supreme-court-fewer-covid-vaccines-more-shirtwaist-factory-fires/