Hostname: page-component-cd9895bd7-fscjk Total loading time: 0 Render date: 2024-12-27T14:15:16.027Z Has data issue: false hasContentIssue false

The OSHA COVID-19 Case and the Scope of the Occupational Safety and Health Act

Published online by Cambridge University Press:  27 July 2022

Mark A. Rothstein*
Affiliation:
UNIVERSITY OF LOUISVILLE SCHOOL OF MEDICINE IN LOUISVILLE, KENTUCKY, USA

Abstract

The Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) for COVID-19 applicable to private sector employers with 100 or more employees. Among other things, the ETS required employers either to mandate employee vaccination or weekly testing and wearing masks.

Type
Columns: Currents in Contemporary Bioethics
Copyright
© 2022 The Author(s)

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

About This Column

Mark A. Rothstein serves as the section editor for Currents in Contemporary Ethics. Professor Rothstein is the Herbert F. Boehl Chair of Law and Medicine and the Director of the Institute for Bioethics, Health Policy and Law at the University of Louisville School of Medicine in Kentucky. (mark.rothstein@louisville.edu)

References

See generally Gottlieb, S., Uncontrolled Spread: Why COVID-19 Crushed Us and How We Can Defeat the Next Pandemic (New York: HarperCollins, 2021).Google Scholar
See Krugman, P., “Of Vaccine Mandates and Facing Reality,” The New York Times, Sept. 30, 2021, available at <https://www.nytimes.com/2021/09/30/opinion/vaccine-madates-republicans.html?action=click&module=RelatedLinks&pgtype=Article> (last visited April 7, 2022). See also D. Diamond, H. Knowles, and T. Pager, “Vaccine Hesitancy Morphs into Hostility, as Opposition to Shots Hardens,” The Washington Post, July 15, 2021, available at <https://www.washingtonpost.com/politics/covid-vaccines-biden-trump/2021/07/15/adaf6c7e-e4bd-11eb-a41e-c8442c213fa8_story.html> (last visited April 7, 2022).+(last+visited+April+7,+2022).+See+also+D.+Diamond,+H.+Knowles,+and+T.+Pager,+“Vaccine+Hesitancy+Morphs+into+Hostility,+as+Opposition+to+Shots+Hardens,”+The+Washington+Post,+July+15,+2021,+available+at++(last+visited+April+7,+2022).>Google Scholar
See Bosman, J. and Leatherby, L., “U.S. Coronavirus Death Toll Surpasses 700,000 Despite Wide Availability of Vaccines,” The New York Times, Oct. 1, 2021, available at <https://www.nytimes.com/2021/10/01/us/us-covid-deaths-700k.html> (last visited April 7, 2022). See also D. Thompson, “How America Dropped to No. 36: The U.S. Has Fallen Far Behind in Distributing the Vaccines that It Has Pioneered,” The Atlantic, Sept. 26, 2021, available at <https://www.theatlantic.com/ideas/archive/2021/09/how-america-lost-its-lead-vaccination/620201/> (last visited April 7, 2022).+(last+visited+April+7,+2022).+See+also+D.+Thompson,+“How+America+Dropped+to+No.+36:+The+U.S.+Has+Fallen+Far+Behind+in+Distributing+the+Vaccines+that+It+Has+Pioneered,”+The+Atlantic,+Sept.+26,+2021,+available+at++(last+visited+April+7,+2022).>Google Scholar
See Thebault, R. and Firozi, P., “Beer, Bouquets and Free Rounds at a Gun Range: How Local Governments Promote Vaccines,” The Washington Post, May 6, 2021, available at <https://www.washingtonpost.com/health/2021/05/06/covid-vaccine-incentives/> (last visited April 7, 2022). See also A. Smith, “Some Employers Offer COVID-19 Vaccine Incentives despite Lack of Guidance,” Society for Human Resource Management (SHRM), Feb. 18, 2021, available at <https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/employers-offer-covid-19-vaccine-incentives.aspx> (last visited April 7, 2022).+(last+visited+April+7,+2022).+See+also+A.+Smith,+“Some+Employers+Offer+COVID-19+Vaccine+Incentives+despite+Lack+of+Guidance,”+Society+for+Human+Resource+Management+(SHRM),+Feb.+18,+2021,+available+at++(last+visited+April+7,+2022).>Google Scholar
See Diamond, D., “‘A Tipping Point’: Government Officials, Health Groups Move to Require Coronavirus Vaccines for Workers,” The Washington Post, July 26, 2021, available at <https://www.washingtonpost.com/health/2021/07/26/mandatory-vaccinations-urged-health-workers> (last visited April 7, 2022). See also S. Berg, “What Doctors Wish Employers Knew about COVID-19 Vaccine Mandates, American Medical Association (AMA), Oct. 8, 2021, available at <https://www.ama-assn.org/delivering-care/public-health/what-doctors-wish-employers-knew-about-covid-19-vaccine-mandates> (last visited April 7, 2022); A.E. Carroll, “Vaccine Mandates Are Coming. Good.” The New York Times, June 28, 2021, available at <https://www.nytimes.com/2021/06/28/opinion/covid-vaccine-mandate.html> (last visited April 7, 2022).+(last+visited+April+7,+2022).+See+also+S.+Berg,+“What+Doctors+Wish+Employers+Knew+about+COVID-19+Vaccine+Mandates,+American+Medical+Association+(AMA),+Oct.+8,+2021,+available+at++(last+visited+April+7,+2022);+A.E.+Carroll,+“Vaccine+Mandates+Are+Coming.+Good.”+The+New+York+Times,+June+28,+2021,+available+at++(last+visited+April+7,+2022).>Google Scholar
See Gostin, L.O., Public Health Law: Power, Duty, Restraint (Berkeley, CA: University of California, 2d ed. 2008): at 79, 424425.Google Scholar
The Tenth Amendment provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the State respectively or to the people.” U.S. Const. Amend. X. See Gostin, supra note 6, at 79-80. See also Tobey, J.A., “Public Health and the Police Power,” New York University Law Review 4, no. 1 (1927): 126133.Google Scholar
See Gibbons v. Ogden, 22 U.S. 1 (1824).Google Scholar
Gostin, supra note 6, at 91-95.Google Scholar
See “Responsibilities in a Public Health Emergency,” National Conference of State Legislatures, Oct. 29, 2014, available at <https://www.ncsl.org/research/health/public-health-chart.aspx> (last visited April 7, 2022). See also “Two Centuries of Law Guide Legal Approach to Modern Pandemic,” American Bar Association, April 2020, available at <https://www.americanbar.org/news/abanews/publications/youraba/2020/youraba-april-2020/law-guides-legal-approach-to-pandemic> (last visited April 7, 2022); Rutkow, L. and Vernick, J.S., “The U.S. Constitution’s Commerce Clause, the Supreme Court, and Public Health,” Public Health Reports 126, no. 5 (2011): 750753, doi:10.1177/003335491112600518.Google Scholar
California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington.Google Scholar
Arizona, Arkansas, Georgia, Indiana, Montana, Oklahoma, Tennessee, Texas, and Utah.Google Scholar
See Mueller, B. and Lutz, E., “U.S. Has Far Higher Death Rate than Other Wealthy Countries,” The New York Times, Feb. 2, 2022, at A1, A11 (last visited April 7, 2022), available at <https://www.nytimes.com/interactive/2022/02/01/science/covid-deaths-united-states.html?=url-share> (only 64% of the population is fully vaccinated and only 27% of the population has received a booster dose).Google Scholar
State and local governments, however, have this authority. Jacobson v. Massachusetts, 197 U.S. 11 (1905).Google Scholar
Exec. Order 14043 (2021).CrossRefGoogle Scholar
86 Fed. Reg. 68052-68101 (2021).Google Scholar
Exec. Order 14042 (2021).Google Scholar
86 Fed. Reg. 61555-61627 (2021).Google Scholar
86 Fed. Reg. 61402-61555 (2021).Google Scholar
OSH Act § 6(b), 29 U.S.C. § 655(b).Google Scholar
See Rothstein, M.A., Occupational Safety and Health Law (Eagan, MN: Thomson Reuters, 2022), at ch. 4.Google Scholar
OSH Act § 6(c), 29 U.S.C. § 655(c).Google Scholar
OSH Act §6(f), 29 U.S.C. § 655(f).Google Scholar
BST Holdings, L.L.C. v. Occupational Safety and Health Administration, 17 F.4th 604, 609 (5th Cir. 2021).Google Scholar
727 F.2d 415 (5th Cir. 1984).Google Scholar
Id. at 426-427.Google Scholar
Id. at 426.Google Scholar
See Rothstein, M.A., “OSHA’s Fatal Flaws Exposed by COVID-19 Pandemic,” The Hill, May 4, 2020, available at <https://thehill.com/opinion/civil-rights/495999-oshas-fatal-flaws-exposed-by-covid-19-pandemic/> (last visited April 7, 2022).+(last+visited+April+7,+2022).>Google Scholar
During the Trump Administration, OSHA declined to issue an ETS. In In re AFL-CIO, 2020 WL 3125324 (D.C. Cir. 2020), the labor organization filed a petition for mandamus in the D.C. Circuit to compel the Department of Labor to issue an ETS addressing the workplace transmission of COVID-19. In denying the petition, the court deferred to OSHA’s assertion that an ETS is not necessary “at this time.” Some state plans, such as California, Michigan, Oregon, and Virginia, promulgated an ETS for COVID-19 exposure.Google Scholar
86 Fed. Reg. 32376-32412 (2021).Google Scholar
See “Coronavirus in the U.S.: Latest Map and Case Count,” The New York Times, Feb. 9, 2022, available at <https://www.nytimes.com/interactive/2021/us/covid-cases.html> (last visited April 7, 2022). See also C. Zimmer et al., “Coronavirus Vaccine Tracker,” The New York Times, Feb. 8, 2022, available at <https://www.nytimes.com/interactive/2020/science/coronavirus-vaccine-tracker.html#pfizer> (last visited April 7, 2022).+(last+visited+April+7,+2022).+See+also+C.+Zimmer+et+al.,+“Coronavirus+Vaccine+Tracker,”+The+New+York+Times,+Feb.+8,+2022,+available+at++(last+visited+April+7,+2022).>Google Scholar
See notes 15-19 supra.Google Scholar
Occupational Safety and Health Administration, COVID-19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61402-61555 (2021).Google Scholar
Id. at 61551.Google Scholar
Id. at 61467.Google Scholar
42 U.S.C. §§ 12101-12213.Google Scholar
42 U.S.C. § 2000e. See Rothstein, M.A., “Covid Vaccine Mandates and Religious Accommodation in Employment,” Hastings Center Report 52, no. 1 (2022): 89.CrossRefGoogle ScholarPubMed
86 Fed. Reg. at 61552.Google Scholar
Id. at 61552-61553.Google Scholar
Pursuant to section 18 of the OSH Act, 29 U.S.C. § 667, states may elect to submit a state plan for approval by OSHA. States having their own legislation, standards, enforcement, and adjudication procedures are able to displace federal OSHA jurisdiction. As of 2022, there are approved state plans in the following jurisdictions: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. See M.A. Rothstein, supra note 21, at ch. 3.Google Scholar
28 U.S.C. § 2112(a).Google Scholar
BST Holdings, L.L.C. v. Occupational Safety and Health Administration, 17 F.4th 604 (5th Cir. 2021).Google Scholar
Needlestick Safety and Prevention Act, Pub. L. No. 106-430, 114 Stat. 190 (2000) (directing OSHA to expand its bloodborne pathogen standard).Google Scholar
American Rescue Plan, Pub. L. No. 117-2, § 2101, 135 Stat. 4, 30 (2021) (including funding for OSHA “to carry out COVID-19 related worker protection activities”).Google Scholar
In re MCP No. 165, 21 F.4th 357, 388 (6th Cir. 2021), reversed sub nom. National Federation oof Independent Business v. Department of Labor, 142 S. C. 661 (2022).Google Scholar
Id. at 390-391 (6th Cir. 2021) (Larsen, J., dissenting).Google Scholar
142 S.Ct. 661 (2022) (per curiam).Google Scholar
Id. at 666.Google Scholar
National Federation of Independent Business v. Department of Labor, 142 S. Ct. 661, 665 (2022) (emphasis in original).Google Scholar
“In the field of occupational health the view is particularly bleak, and, due to the lack of information and records, may well be considerably worse than we currently know.” Senate Report No. 91-1282, 91st Cong., 2d Sess. (1970), at 2. The Report goes on to note that there are 390,000 new cases of occupational disease each year, and describes the special dangers of byssinosis, asbestosis, toxic chemicals, and other health hazards. Id. at 2-4.Google Scholar
OSH Act § 22, 29 U.S.C. § 671. In a somewhat obscure section of the OSH Act, Congress described the permissible scope of occupational health research, including immunization. “Nothing in this or any other provision of this Act shall be deemed to authorize or require medical examination, immunization, or treatment for those who object thereto on religious grounds, except where such is necessary for the protection of the health or safety of others.” OSH Act § 20(a)(5), 29 U.S.C. § 669(a)(5).Google Scholar
142 S. Ct. at 665 (emphasis in original).Google Scholar
86 Fed. Reg. at 61411.Google Scholar
Id. at 61411-61417.Google Scholar
National Federation of Independent Business v. Department of Labor, 142 S. Ct. 661, 666 (2022).Google Scholar
In Biden v. Missouri, 142 S. Ct. 647 (2022) (per curiam), the Supreme Court upheld a rule of the Centers for Medicare and Medicaid Services providing that health care facilities receiving Medicare and Medicaid funding must ensure that their staff members are vaccinated against COVID-19. In a per curiam opinion of five justices, the Court imposed a stay on lower court rulings enjoining enforcement of the new rule. As with the OSHA ETS, the Supreme Court’s decision decided the underlying legal challenge to the rule. The majority held that the Secretary of Health and Human Services had the statutory authority to impose such a rule to protect the health and safety of health care personnel and their patients. In two dissenting opinions, Justices Thomas, Alito, Gorsuch, and Barrett argued that the rule failed under the major questions doctrine, id. at 658 (Thomas, J., dissenting), and failed to afford an opportunity for notice and comment, id. at 659 (Alito, J., dissenting).Google Scholar
Id. at 667 (Gorsuch, J., concurring).Google Scholar
Id., quoting Alabama Association of Realtors v. Department of Health and Human Services, 141 S. Ct. 2485, 2489 (2021) (per curiam) (invalidating eviction moratorium of the Centers for Disease Control and Prevention designed to limit the spread of COVID-19).Google Scholar
Id. at 672 (Breyer, J., dissenting).Google Scholar
Id. at 673 (Breyer, J., dissenting).Google Scholar
“Underlying everything else in this dispute is a single, simple question: Who decides how much protection, and of what kind, American workers need from COVID-19? An agency with expertise in workplace health and safety, acting as Congress and the President authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes?” Id. at 676 (Breyer, J., dissenting).Google Scholar
National Federation of Independent Business v. Department of Labor, 142 S. Ct. 661 (2022) (per curiam) (majority opinion); Id. at 667 (Gorsuch, J., concurring); In re MCP No. 165, 21 F.4th 357 (6th Cir. 2021) (Larsen, J., dissenting), reversed sub nom. National Federation of Independent Business v. Department of Labor, 142 S. C. 661 (2022); BST Holdings, L.L.C. v. Occupational Safety and Health Administration, 17 F.4th 604 (5th Cir. 2021) (unanimous panel opinion). See also Biden v. Missouri, 142 S. Ct. 647, 668 (2022) (Thomas, J., dissenting) (criticizing the vaccination mandate for health care workers promulgated by the Centers for Medicare and Medicaid Services).Google Scholar
467 U.S. 837 (1984).CrossRefGoogle Scholar
MCI v. American Telephone & Telegraph Co., 512 U.S. 218 (1994); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).Google Scholar
576 U.S. 988 (2015).Google Scholar
141 S. Ct. 2485 (2021).Google Scholar
See Greenhouse, L., “What the Supreme Court’s Vaccine Case Was Really About,” The New York Times, Jan. 17, 2022, available at <https://www.nytimes.com/2022/01/17/opinion/supreme-court-vaccine-osha.html> (last accessed April 7, 2022). See also I. Millhiser, “The Supreme Court Showdown over Biden’s Vaccine Policies, Explained,” VOX, Dec. 22, 2021, available at <https://www.vox.com/2021/12/22/22848155/supreme-court-vaccine-mandate-osha-cms-covid-joe-biden,> (last visited April 7, 2022).+(last+accessed+April+7,+2022).+See+also+I.+Millhiser,+“The+Supreme+Court+Showdown+over+Biden’s+Vaccine+Policies,+Explained,”+VOX,+Dec.+22,+2021,+available+at++(last+visited+April+7,+2022).>Google Scholar
See Squitieri, C., “Who Determines Majorness?Harvard Journal of Law and Public Policy 44, no. 2 (2021): 463522.Google Scholar
In re MCP No. 165, 21 F.4th 357, 372 (6th Cir. 2021), reversed sub nom. National Federation of Independent Business v. Department of Labor, 142 S. Ct. 661 (2022).Google Scholar
N. Brunstein and R.L. Revesz, “Regulatory Comments and the Major Questions Doctrine,” The Regulatory Review, Nov. 15, 2021, available at <https://www.theregreview.org/2021/11/15/revesz-brunstein-regulatory-comments-major-questions-doctrine> (last visited April 7, 2022).CrossRef+(last+visited+April+7,+2022).>Google Scholar
D.M. Driesen, “Major Questions and Juristocracy,” The Regulatory Review, Jan. 31, 2022, available at <https://www.theregreview.org/2022/01/31/driesen-major-questions-juristocracy> (last visited April 7, 2022).+(last+visited+April+7,+2022).>Google Scholar
L.O. Gostin, “The US Supreme Court’s Rulings on Large Business and Health Care Worker Vaccine Mandates: Ramifications for the COVID-19 Response and the Future of Federal Public Health Protection,” Journal of the American Medical Association, Jan. 21, 2022, available at <https://www.jamanetwork.com/journals/jama/fullarticle/2788481?resultclick=1> (last visited April 7, 2022).+(last+visited+April+7,+2022).>Google Scholar
National Federation of Independent Business v. Department of Labor, 142 S. Ct. 661, 666 (2022).Google Scholar
5 U.S.C. §801.Google Scholar
See Presidential Statement on Signing Legislation to Repeal Federal Ergonomics Regulations, 37 WCPD 477 (Mar. 20, 2001), available at <https://www.govinfo.gov/app/details/WCPD-2001-02-26/WCPD-2001-03-26-pg477> (last visited April 7, 2022). See also Ergonomics Rule Disapproval, Pub. L. No. 107-5, 115 Stat. 7 (2001), invalidating 65 Fed. Reg. 68261 (Nov. 14, 2000).+(last+visited+April+7,+2022).+See+also+Ergonomics+Rule+Disapproval,+Pub.+L.+No.+107-5,+115+Stat.+7+(2001),+invalidating+65+Fed.+Reg.+68261+(Nov.+14,+2000).>Google Scholar
See Joint Resolution Disapproving the Rule Submitted by Labor Relating to “Clarification of Employer’s Continuing Obligation to Make Accurate Record of Each Recordable Injury and Illness,” Pub. L. 115-21, 131 Stat. 87 (2017), invalidating 81 Fed. Reg. 91792 (Dec. 19, 2016).Google Scholar
S. Batkins, “Congress Strikes Back: The Institutionalization of the Congressional Review Act,” Mitchell Hamline Law Review 45 (2019), available at <https://open.mitchellhamline.edu/mhlr/vol45/iss2/1> (last visited April 7, 2022). See also C. Buble, “Congressional Republicans Attempt to Overturn OSHA Vaccine Rule,” Government Executive, Nov. 18, 2021, available at <https:www.govexec.com/oversight/2021/11/congressional-republicans-attempt-to-overturn-osha-vaccine-rule/186953> (last visited April 7, 2022); B.C.E. Dooling, D. Perez, and S.J. Balia, “Where Are the Congressional Review Act Disapprovals?” Brookings, March 24, 2021, available at <https://www.brookings.edu/research/where-are-the-congressional-review-act-disapprovals> (last visited April 7, 2022).+(last+visited+April+7,+2022).+See+also+C.+Buble,+“Congressional+Republicans+Attempt+to+Overturn+OSHA+Vaccine+Rule,”+Government+Executive,+Nov.+18,+2021,+available+at++(last+visited+April+7,+2022);+B.C.E.+Dooling,+D.+Perez,+and+S.J.+Balia,+“Where+Are+the+Congressional+Review+Act+Disapprovals?”+Brookings,+March+24,+2021,+available+at++(last+visited+April+7,+2022).>Google Scholar
Statement for the Record by Senators Nickles, Reid, and Stevens, Congressional Record — Senate S3683, S3686 (April 18, 1996).Google Scholar
141 S. Ct. 666 (Gorsuch, J., dissenting), quoting Free Enterprise Fund v. Public Accounting Oversight Board, 561 U.S. 477, 505 (2010).Google Scholar
See J. Ortaliza, K. Amin, and C. Cox, “COVID-19 Preventable Mortality,” Peterson-KFF Health System Tracker, Oct. 13, 2021, available at <https://www.healthsystemtracker.org/brief/covid19-and-other-leading-causes-of-death-in-the-us> (updated Dec. 2021) (last visited April 7, 2022).+(updated+Dec.+2021)+(last+visited+April+7,+2022).>Google Scholar
See note 60 supra.Google Scholar
In re MCP No. 165, 21 F.4th Cir. 357, 397 (6th Cir. 2021) (Larsen, J., dissenting), reversed sub nom. National Federation of Independent Business v. Department of Labor, 142 S. Ct. 661 (2022).Google Scholar
BST Holdings, L.L.C. v. Occupational Safety and Health Administration, 17 F.4th 604, 618 (5th Cir. 2021) (footnote omitted).Google Scholar
Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905).Google Scholar