OSHA and Public Health in an Emergency and a Culture War.

AuthorCarlson, Richard R.

ABSTRACT 1001 TABLE OF CONTENTS 1003 I. INTRODUCTION 1004 II. OSHA'S PANDEMIC RESPONSE 1006 A. OSHA's Early Treatment of COVID-19 as an "Occupational" Disease 1006 B. OSHA's Early Enforcement Strategy for COVID-19 1011 1. Early Non-Vaccination Measures 1011 2. OSHA's Search for a Fast Non-Vaccination Strategy 1013 a. Emergency Temporary Standard 1013 b. Non-Binding OSHA Guidance 1016 c. Enforcement Under "General Duty" Clause 1020 C. OSHA's Shift to a Vaccination-Inclusive Strategy 1022 III. THE JUDICIAL CHALLENGES TO THE NOVEMBER 2021 ETS 1029 A. The ETS in the U.S. Courts of Appeals 1029 B. The ETS Before the U.S. Supreme Court 1035 1. The "Vast Significance" of the ETS 1035 2. Statutory Interpretation: Did the OSH Act Clearly Authorize the ETS? 1041 a. Workplace Safety Standard vs. Broad Public Health Measure 1042 b. Occupational Hazards vs. Daily Life Hazards 1044 c. Historical Precedent Reflecting the Scope of Congressional Authorization 1049 d. Balancing Equities for Preliminary Relief 1050 IV. LESSONS FOR OSHA'S ROLE IN A FUTURE "PUBLIC" HEALTH EMERGENCY 1052 A. The Practical Benefits of a "Stayed" ETS 1052 B. OSHA's Other "Emergency" Tools 1054 C. Future Emergency Orders 1056 1. Presentation 1056 a. Incidental Personal, Business and Economic Benefits of Vaccination 1056 b. Choice vs. Compulsion 1057 2. Variances 1058 V. CONCLUSION 1060 I. INTRODUCTION

In National Federation of Independent Business v. Department of Labor ("NFIB"), (1) the U.S. Supreme Court heard emergency applications to stay an Occupational Safety and Health Administration ("OSHA") emergency temporary standard ("ETS") that included a COVID-19 vaccination rule. (2) The vaccination rule was part of an option: an employer could adopt a rigorous masking and testing regime for unvaccinated employees, or the employer could require all employees to obtain vaccinations. For many employers, employees and other members of the public, vaccinations were a relief from months of perpetual risk and crushing non-vaccination safety measures. Not all Americans shared this enthusiasm for vaccinations. Rules requiring vaccination or burdening unvaccinated persons offended a small but formidable minority. The conflict over vaccinations became part of a larger culture war which included other public health issues, including abortion and gun control.

The Court granted the applications and stayed OSHA's enforcement of its ETS. (3) The stay was based on a prediction, not a decision on the merits. (4) The Court decided only that OSHA could not enforce the ETS until the completion of judicial review, a process likely to take many months. (5) The Court's per curiam opinion explained one single reason for the stay: a Court majority believed the rule was not an "occupational health" rule. (6) Rather, it was a "public health" rule beyond OSHA's statutory authority. The practical effect of the stay was the end of the ETS. A stay for the duration of a judicial review process renders an emergency rule useless as a response to an emergency. OSHA withdrew the ETS a few days later. (7) And thus, the Court will never hear a final appeal on the merits of OSHA's COVID-19 vaccination rule.

The result disappointed OSHA and many vaccination advocates but was not a total defeat for the agency. The Court's dicta suggests that an OSHA vaccination rule targeting a few specific employment settings could survive judicial review. (8) On the same day as NFIB, the Court decided Biden v. Missouri, (9) upholding another agency's vaccination rule for certain medical facilities. Clear congressional authorization for such an agency rule is important. (10)

OSHA also won a small practical victory in losing. It appears that OSHA anticipated a Court stay against enforcement, as the agency was already moving on to another pandemic strategy. In the meantime, however, its short-lived ETS accelerated the rate of vaccinations among Americans during the weeks before the Court's stay. (11) That practical effect made the public a little safer.

Nevertheless, the NFIB majority's unsigned per curiam opinion casts a shadow on OSHA's ability to protect employee safety or participate in a public emergency response. "The question," the majority stated, "is whether the Act plainly authorizes the [OSHA vaccination] mandate. It does not." (12) However, the majority's conclusion that OSHA lacked authority to issue the ETS did not follow naturally or logically from the majority's statement of the law. The resulting stay did conveniently mitigate a culture war conflict in the short term, but flawed reasoning behind the stay has serious implications for the long term. COVID-19 is not necessarily finished with us. It might not be the last or worst health emergency we will face. The next pandemic might have a higher rate of hospitalization or fatality. It might be more deadly to children and young adults. (13) NFIB suggests that OSHA's tools are limited in ways that make preventive health measures more difficult in an emergency. The result will eventually be detrimental to employers and local public health officials. A future public emergency will be more dangerous for employees and the public, and more expensive and politically divisive for employers, states and local authorities. NFIB shifted the likely frontlines of culture war conflict from OSHA to private workplaces.

The history of OSHA's pandemic strategy and the nature of judicial response is important for understanding what OSHA can and cannot do in the next emergency. Part II begins by explaining why an airborne disease like COVID-19 is an "occupational" disease within the scope of OSHA's authority. Part II then describes OSHA's regulatory tools for dealing with COVID-19 and the agency's shift from burdensome non-vaccination measures to the combination of vaccination and non-vaccination measures presented by the ETS. Part III looks at the legal and culture war battle over the ETS in the courts of appeals and the Supreme Court's decision to stay enforcement in NFIB. Part III takes a particularly hard look at the NFIB majority's legal argument and rhetoric in justifying the stay. Finally, Part IV examines the tools OSHA still possesses after NFIB to respond to an emergency. These tools are not as forceful as an emergency temporary standard but can still have a significant effect in mitigating risk. Unfortunately, some of these tools shift the front lines of a culture war from federal agency politics to the private sector workplace.


    1. OSHA's Early Treatment of COVID-19 as an "Occupational" Disease

      The NFIB majority ultimately held that the ETS was a "public" health measure, not an "occupational" health measure. (14) This is a false dichotomy. Appreciating the real scope of the terms "occupational hazard" and "occupational disease," and the relationship between occupational health and public health, begins with an examination of OSHA's pre-ETS approach to COVID-19 and its history in dealing with disease in the workplace.

      OSHA's COVID-19 emergency temporary standard for the general workforce was not the agency's first pandemic-related action; it was the culmination of a series of actions by OSHA and other parts of the federal government that began almost immediately after COVID-19 arrived in the United States in early 2020. (15) From the start, OSHA treated COVID-19 as an "occupational hazard" within the meaning of the Occupational Safety and Health Act ("OSH Act"), but OSHA relied substantially on the Centers for Disease Control and Prevention ("CDC") for research and expertise about the dangers of COVID-19 and methods to control the disease. (16) Vaccination was not part of the agency's early strategy because vaccinations were not available to the general workforce for more than a year after the beginning of the pandemic. (17) Social distancing, masking, testing and other measures recommended by the CDC were part of OSHA's early strategy. However, even these non-vaccination measures became part of a culture war dividing society and politics. (18)

      Partisans may have disputed the merits of OSHA's early COVID-19 strategies, but the agency's authority to treat COVID-19 as an occupational hazard in some settings was never in serious doubt. The OSH Act's purpose is to achieve "safe and healthful working conditions" for "every working man and woman in the Nation." (19) The Act authorizes OSHA to adopt any standard "reasonably necessary or appropriate" to meet this goal," (20) and it includes illness among the range of work hazards within OSHA's mandate. For example, the Act begins with Congress's finding that "personal injuries and illnesses arising out of work situations" are a burden on interstate commerce. (21) The Act's goals include making work more "healthful." (22) Long before COVID-19, OSHA promulgated safety standards for diseases such as cancer, hepatitis and HIV when it found that work significantly exacerbated the risk of a disease. (23) Some of these disease standards were more than forty years old when COVID-19 arrived in the United States. (24) Pre-COVID-19 viral and bacterial disease standards do not appear to have provoked any significant social or political opposition. In fact, several congressional actions endorsed OSHA's early disease standards. (25) OSHA lacked any standard regarding airborne viral diseases until COVID-19, (26) but COVID-19 appears to be the first significantly dangerous airborne disease affecting the workplace since the enactment of the OSH Act in 1970. (27)

      Nevertheless, at the outset of the COVID-19 pandemic, some insurers, agencies and judges questioned whether COVID-19 was an "occupational" disease under various employment laws. (28) COVID-19 is not unique to the workplace. Some non-employment settings are even more dangerous for the spread of the disease than a typical employment setting, leading insurers and opponents of regulation to argue that COVID-19 is a "common" or "ordinary"...

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