Who gave a 50-year-old federal agency the power to create a vaccine-or-test mandate? The Supreme Court hears oral arguments

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How risky is the office compared to everywhere else during the pandemic?

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Has anyone really given a 50-year-old federal agency – the government’s Occupational Safety and Health Administration – the legal capacity to create a COVID-19 vaccination-or-testing rule that could affect 84 million private-sector workers?

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And what if those rules go into effect on Monday, January 10? Will they quell the skyrocketing increase in new COVID-19 infections in a microscopic way, or lead to the exodus of workers who refuse to be subject to vaccination requirements?

Those are some of the key questions that US Supreme Court justices are embroiled in on Friday in arguments over the federal government’s vaccination-or-testing mandate for businesses with at least 100 workers. Now the question is whether they prevent enforcement.

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A clue that the judges have a lot on their mind?

Verbal arguments were scheduled for one hour only. They went to double lengths when the judges pressed lawyers on all sides of the arguments for and against the immediate pause, made by the Department of Labor’s Occupational Safety and Health Administration.

The two hours also do not count for the time spent later on oral arguments for a related matter about vaccine requirements for healthcare workers.
When it comes to controversial OSHA rules, trade unions and Republican-leaning states want to stop immediately. They say OSHA is going too far beyond its powers with a mandate that will cost businesses money for staff and compliance costs.

The Biden administration says this is exactly the moment OSHA was created for: coming up with rules to protect workers when they go to work.

Here are three topics that came up during Friday’s arguments:

Judges are well aware of rising numbers of COVID-19 cases – but how quickly will they act?

OSHA unveiled its rules requiring vaccination or weekly testing in early November, before anyone had ever heard of the Omron version.

That was then, this is now.

The US recorded more than 725,000 new COVID-19 infections on Thursday, according to a New York Times Case Tracker. On Wednesday, hospitalizations were up 58% from two weeks earlier.

“Is this what you’re doing now? To ask to stop this vaccination rule in the public interest in this situation, with about a million people, I shouldn’t exaggerate, about three-quarters of a million people, new cases every day? ” Justice Stephen Breuer asked attorneys representing businesses that want the court to overturn the rules. “I mean, to me, I’d find that unbelievable.”

“Justice Breuer, we are asking for a stay before enforcement goes into effect on Monday, and the reason is because it is an unprecedented agency action,” said Scott Keller, an attorney representing the business groups.

Breyer seemed incredulous, the questioning continued. “It’s going to cause massive economic change in the country, billions upon billions of non-recoverable costs. Testing is also often not available,” Keller responded.

Questions on the timing of the rules played out differently later.

Justice Samuel Alito said that in a very short time, the court had piled up hundreds of pages of legal briefs and weighty arguments on the mandate.

He asked Solicitor General Elizabeth Preloger, representing the Biden administration, whether the government would object to “taking a few days for people to digest the arguments, perhaps to think about it, before they lose their jobs?”

A brief administrative adjournment was something the court could have done if it wanted, he replied.

But wait, Alito wondered, wasn’t it the position of the government that “every single day” since the rules were made in November were causing “serious harm” to workers without vaccinations freely entering workplaces?

“Certainly we think the loss exists and exists,” Preller said. “If the court believes that it needs a brief, administrative stay, then, of course, it can enter it.”

“You mean brief, right?” asked one of the judges.

“Yeah, we think lives are being lost every day,” Preloger said.

Does OSHA have authority to make vaccinations mandatory?

The Occupational Safety and Health Administration came into being when President Richard Nixon signed a 1970 law that created the agency a year later.

Decades later, Preloger told the court that combating workplace exposure to infectious disease was “at the heart of OSHA’s authority.” While opponents of the mandate say Congress now needs to authorize the COVID-19 mandate, Preller said the court only had to look at the wording of the Occupational Safety and Health Act.

But it took a long time for that act to become law, Chief Justice John Roberts said.

“That was 50 years ago when you were saying that Congress worked. I don’t think it had COVID in mind. It was almost closer to the Spanish flu than it is today,” he said.

With other federal agency vaccine requirements — such as those for health care workers and federal contractors — “it looks like the government is trying to work coast by coast instead of Congress and go agency by agency”, Roberts said.

If OSHA has power, why isn’t polio and flu vaccines mandated in workplaces as well, Justice Neil Gorsuch asked. The size and scope of the COVID pandemic put it on a different plane, Preller said.

Judges also suppressed mandate opponents aimed at OSHA.

If the agency can’t protect workers from unsafe settings, what is it for, Justice Sonia Sotomayor wondered at another point in the arguments. “What’s the difference between telling employers that the spark is flying in the workplace that your employees must wear masks?”

“When the spark is flying in the workplace, it’s probably because there’s a machine that’s unique to that workplace,” Keller, who represents the trade unions, responded.

“Why isn’t a human like a machine if he’s spewing a virus?” Sotomayor asked.

How dangerous is the workplace compared to other parts of life?

The OSHA mandate is “a wrong rule nationwide,” said Ohio Solicitor General Benjamin Flowers, arguing on behalf of the states opposing the mandate. He spoke remotely on Friday as he recently tested positive for COVID-19.

COVID-19 “is a threat that we all have to face in terms of waking up in the morning,” he said. So this is not a particular workplace hazard where OSHA should be stepping in with a broad mandate, he said.

Justice Elena Kagan saw it differently. Think of it as something like a baseball game, he noted. One person can decide to go to the game, and they can decide who they will go with if they want to go.

“But you can’t do anything like this 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 can be completely irresponsible. Where are people more at risk than in the workplace?”

At another point, Justice Amy Connie Barrett said that not all jobs are created equal. The risk of infection is higher for some, such as those working in meatpacking plants. Were businesses arguing that certain rules are necessary — but that the focus should be tight, he asked?

“Wherever that line is, [the OSHA regulation] That line is far ahead,” Keller said.


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