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How risky is the office compared to everywhere else during the pandemic?
Did anyone actually give a 50-year-old federal agency — the government’s Occupational Safety and Health Administration — the legal ability to create COVID-19 vaccination-or-testing rules that could affect 84 million private sector workers?
And what happens if those rules start taking effect on Monday, Jan. 10? Will they blunt the sky-high rise in new COVID-19 infections from the omicron variant, or lead to an exodus of workers who refuse to be subjected to vaccination requirements?
Those are some of the key questions U.S. Supreme Court justices grappled with Friday in arguments on the federal government’s vaccination-or-test mandate for businesses with at least 100 workers. Now it’s a question of whether they halt enforcement.
One clue that the justices have a lot on their mind?
Oral arguments were only scheduled to go an hour. They went for double the length as the judges pressed lawyers on all sides of the arguments for and against an immediate pause to the regulations, which were created by the Department of Labor’s Occupational Safety and Health Administration.
The two hours do not even count the time judges spent afterwards on oral arguments for a related case about vaccine requirements for healthcare workers.
When it comes to the disputed OSHA rules, business associations and Republican-leaning states want an immediate stay. They say OSHA is venturing far outside its powers with a mandate that will cause businesses to hemorrhage staff and money for compliance costs.
The Biden administration says this moment is exactly what the OSHA was built for: Coming up with rules to protect workers when they go to work.
Here are three themes that emerged during Friday’s arguments:
The judges are keenly aware of increasing COVID-19 case counts — but how quickly will they act?
OSHA unveiled its rules requiring either vaccination or weekly testing in early November, weeks before anyone had ever heard of the omicron variant.
That was then, this is now.
The U.S. 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 prior.
“Is that what you are doing now? To say to the public interest in this situation to stop this vaccination rule, with nearly a million people, let me not exaggerate, nearly three-quarters of a million people, new cases every day?” Justice Stephen Breyer asked the lawyer representing businesses who want the court to stay the rules. “I mean, to me, I would find that unbelievable.”
“Justice Breyer, we are asking for a stay before enforcement takes effect Monday, and the reason for that is this is an unprecedented agency action,” said attorney Scott Keller, representing the business groups.
Breyer kept up the questioning, sounding incredulous. “This is going to cause a massive economic shift in the country, billions upon billions of non-recoverable costs. Testing is also not frequently available,” Keller responded.
Questions on the timing of the rules played out in a different way later on.
Justice Samuel Alito noted that in a very short span, hundreds of pages of legal briefs and weighty arguments on the mandate had piled up in the court.
He asked Solicitor General Elizabeth Prelogar, representing the Biden administration, whether the government would “object to our taking a couple days maybe to think about this, to digest the arguments, before people start losing jobs?”
A brief administrative stay was something the court could do if it wanted, she responded.
But wait, Alito wondered, wasn’t it the government’s position that “grave harm” had been occurring “every single day” since the rule had been created in November, with unvaccinated workers freely entering workplaces?
“Certainly we think the harm has existed and been present,” Prelogar said. “If the court believes it needs a brief, administrative stay, then, of course, it can enter it.”
“You mean brief, don’t you?” one of the judges asked.
“Yes, we think there are lives being lost every day,” Prelogar said.
Does OSHA have the authority to mandate vaccinations?
The Occupational Safety and Health Administration came into being when President Richard Nixon signed a 1970 law that created the agency one year later.
Decades later, Prelogar told the court that countering workplace risk from infectious disease was “in the heartland of OSHA’s authority.” While opponents of the mandate say Congress needs to authorize COVID-19 mandates now, Prelogar said the court just had to look at the wording of the Occupational Safety and Health Act.
But a lot of time has passed since that act became law, Chief Justice John Roberts said.
“That was 50 years ago that you’re saying Congress acted. I don’t think it had COVID in mind. That was almost closer to the Spanish Flu than it is to today’s problem,” he said.
With the slew of other federal agency vaccine requirements — like the one for health care workers and federal contractors —- “it seems to me the government is trying to work across the waterfront and go agency by agency” instead of through Congress, Roberts said.
If OSHA has the power, why not mandate polio and flu vaccines in workplaces too, Justice Neil Gorsuch asked. The size and scope of the COVID pandemic put it at a different plane, Prelogar said.
Judges pressed the mandate opponents on the purpose of OSHA too.
If the agency can’t protect workers from unsafe settings, what is it there for, Justice Sonia Sotomayor wondered at another point in the arguments. “What’s the difference between this and telling employers where sparks are flying in the workplace, your workers have to wear a mask?”
“When sparks are flying in the workplace, that’s presumably because there’s a machine that’s unique to that workplace,” Keller, representing the business associations, responded.
“Why is the human being not like a machine if it’s spewing a virus?” Sotomayor asked.
How dangerous is the workplace compared to other parts of life?
The OSHA mandate is “a blunderbuss rule nationwide in scope,” said Benjamin Flowers, Ohio’s solicitor general, arguing on behalf of states opposed to the mandate. He spoke remotely on Friday because he recently tested positive for COVID-19.
COVID-19 is “a danger we all simply face as a matter of waking up in the morning,” he said. So this isn’t a special workplace threat where OSHA should step in with a sweeping mandate, he said.
Justice Elena Kagan saw it differently. Think about something like a baseball game, she noted. A person can decide to go to the game, and they can decide who they’ll go with if they want to go.
“But you can’t do any of that 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 might be completely irresponsible. Where else do people have a greater risk than at the workplace?”
At another point, Justice Amy Coney Barrett noted that not all jobs are created equal. The infection dangers for some are far greater, like people working at a meatpacking plant. Were businesses arguing some rules are necessary — but that the focus has to be tighter, she asked?
“Wherever that line is, [the OSHA regulation] is so far beyond that line,” Keller said.
