{"id":7254,"date":"2022-02-16T12:51:24","date_gmt":"2022-02-16T12:51:24","guid":{"rendered":"http:\/\/lonecandle.com\/?p=7254"},"modified":"2022-02-16T12:51:24","modified_gmt":"2022-02-16T12:51:24","slug":"in-the-case-that-blocked-oshas-vaccine-mandate-the-justices-disagreed-about-when-covid-19-counts-as-a-workplace-hazard","status":"publish","type":"post","link":"https:\/\/lonecandle.com\/?p=7254","title":{"rendered":"In the Case That Blocked OSHA’s Vaccine Mandate, the Justices Disagreed About When COVID-19 Counts As a Workplace Hazard"},"content":{"rendered":"\n

\n\n“Underlying that split is the question of whether and when COVID-19 counts as a workplace hazard, justifying regulation by the Occupational Safety and Health Administration (OSHA), as opposed to a general risk that Americans face throughout the day, which goes beyond that agency’s statutory mission. All of the justices agreed that OSHA does not have a general license to protect public health, and all of them agreed that the agency does have the power to address COVID-19 in the workplace. But while the dissenters were willing to let OSHA define that problem in general terms, justifying a broad solution covering 84 million employees, the majority thought the agency was obliged to be more specific and discriminating.”
…
“OSHA has previously issued regulations that addressed communicable diseases. In 1990, it issued a nonemergency standard dealing with bloodborne pathogens<\/a>, and last June it published a COVID-19 ETS<\/a> for the health care industry. But both of those rules aimed to protect employees who faced special hazards because of the nature of their work (handling blood samples and treating COVID-19 patients, respectively), and neither of them encouraged or required employers to make vaccination mandatory. That is something OSHA, which has existed for more than half a century, has never done before\u2014a point that the justices emphasized during oral arguments<\/a> last week and again in yesterday’s decision.<\/p>\n\n\n\n

“OSHA has never before imposed such a mandate,” the Court notes. “Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID\u201319 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here\u2026.The most noteworthy action concerning the vaccine mandate by either House of Congress has been a majority vote of the Senate disapproving the regulation on December 8, 2021.”<\/p>\n\n\n\n

In a joint dissent<\/a>, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan argue that OSHA’s unprecedented rule is justified by the unprecedented threat that COVID-19 poses”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“Even as Breyer et al. emphasize the society-wide threat posed by COVID-19, they suggest the risk is especially acute in the workplace, where employees typically gather inside for eight hours a day. That basic fact, the dissenters argue, justifies OSHA’s broad approach, because the coronavirus “spreads mostly without regard to differences in occupation or industry.””<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“More generally, the majority says, OSHA has failed to draw appropriate distinctions between different work situations that pose widely varying risks of virus transmission. “Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational<\/em> hazard in most,” the Court says. “COVID\u201319 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. Permitting OSHA to regulate the hazards of daily life\u2014simply because most Americans have jobs and face those same risks while on the clock\u2014would significantly expand OSHA’s regulatory authority without clear congressional authorization.””<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“The majority nevertheless concedes that OSHA has the authority to address COVID-19 in certain contexts:<\/p>\n\n\n\n

“Where the virus poses a special danger because of the particular features of
an employee’s job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID\u201319 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID\u201319 that all face. OSHA’s indiscriminate approach fails to account for this crucial distinction\u2014between occupational risk and risk more generally\u2014and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational<\/em> safety or health standard.”””<\/p><\/blockquote>\n\n\n\n

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In the Case That Blocked OSHA’s Vaccine Mandate, the Justices Disagreed About When COVID-19 Counts As a Workplace Hazard<\/a><\/blockquote>