The Supreme Court upholds COVID denial in striking down OSHA’s vaccination requirement
The Supreme Court’s decision Friday striking down a federal requirement of vaccination or testing in the workplace makes no sense as a matter of law or of public health. Many more people will needlessly become sick and die because of it. The only way to understand the court’s ruling is to see it as six conservative justices reflecting misguided conservative denial about COVID and vaccines.
The Occupational Safety and Health Administration (OSHA) adopted a rule mandating that employers in workplaces with at least 100 employees require them to be vaccinated or take weekly COVID tests. The federal statute allows OSHA to adopt emergency temporary standards if it determines that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.”
This regulation would have applied to about 80 million U.S. workers. OSHA estimated that the emergency rule would have saved over 6,500 lives and prevented over 250,000 hospitalizations in six months’ time.
Yet in a 6-3 vote, the Supreme Court struck down the regulation. The six conservative justices appointed by Republican presidents made up the majority, while three liberal justices appointed by Democratic presidents dissented.
The court’s opinion was disturbing and wrong. Nowhere does the majority opinion acknowledge the danger of COVID: Over 850,000 Americans have died, over 4 million in this country have been hospitalized and more than 10 million in the world have lost their lives to this virus. The court handed down its decision when COVID was surging, with two lawyers arguing against the mandate unable to appear in person after failing the court’s COVID protocols.
The conservative justices, who usually purport to focus on the text of the law in interpreting it, simply ignored the statutory language here. No one can possibly disagree that COVID-19 is a “grave danger” and a “new hazard” in the workplace. OSHA, in adopting the regulation, documented at length that there’s no alternative to vaccinations or testing.
The court struck down the regulation by holding that OSHA can act only against hazards unique to the workplace. The conservative justices said that because COVID also occurs outside the workplace, OSHA cannot regulate it. There’s absolutely nothing in the statute that creates this limit on OSHA’s power. As the dissenting justices observed: “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.”
The court’s majority said this regulation is unprecedented. But if the policy is unique, that’s because it’s in response to an unprecedented crisis: the deadliest pandemic in American history.
The six Republican-appointed justices substituted their judgment for that of the expert agency on workplace safety.
It should be noted that in a separate case, the court upheld the other regulation before it. The Centers for Medicare and Medicaid Services in the Department of Health and Human Services adopted a rule requiring all health care workers at facilities that participate in the Medicare and Medicaid programs to be fully vaccinated against COVID-19 unless they are eligible for a medical or religious exemption. This regulation applies to about 10 million health care workers.
In some ways, it’s hard to believe that the decisions came from the same court on the same day. In this case, the court spoke of the devastation of the COVID epidemic and the need for deference to administrative agencies. Even though the federal statutes were less clear in providing authority for the rules than in the OSHA case, the court upheld them.
Ultimately, the question is who should be deciding vaccination guidelines in a pandemic. The answer is those with expertise, not the federal judiciary.
