Vaccine mandates

Dueling Dictionary Definitions Figure Prominently in the Legal Dispute Over OSHA's Vaccine Mandate

Is the COVID-19 virus an "agent"?


Briefs submitted to U.S. Court of Appeals for the 5th Circuit this week suggest that dueling dictionary definitions could figure prominently in the legal dispute over the federal vaccine mandate for private employers. Opponents of the mandate, which the Occupational Safety and Health Administration (OSHA) published last Friday, argue that it exceeds the agency's statutory authority. The Justice Department says the mandate plainly falls within the agency's powers under the Occupational Safety and Health Act. The dispute hinges largely on the meaning of key phrases in that law, which is why both sides in the 5th Circuit case did a dictionary dive, looking for definitions that bolster their arguments.

OSHA's "emergency temporary standard" (ETS) decrees that companies with 100 or more employees must require them to be vaccinated against COVID-19 or wear face masks and undergo weekly testing. Last Saturday, responding to a lawsuit filed by a Louisiana supermarket chain and six employees of a Texas company that makes kitchen ventilation systems, the 5th Circuit imposed a temporary stay on the ETS, which it said raises "grave statutory and constitutional issues." The court asked the government to "respond to the petitioners' motion for a permanent injunction" and invited a reply from the petitioners. Both briefs in BST Holdings v. OSHA address an arcane question that is apt to come up repeatedly in challenges to the vaccine mandate: Is the COVID-19 virus an "agent"?

That matters because of the legal requirements for an ETS. OSHA has to identify a "grave danger" to employees "from exposure to substances or agents determined to be toxic or physically harmful or from new hazards." It also has to show the emergency standard is "necessary to protect employees from such danger."

The plaintiffs in BST Holdings v. OSHA, who are represented by the Chicago-based Liberty Justice Center and Louisiana's Pelican Institute for Public Policy, argue not only that the ETS is not "necessary" but also that the agency has failed to identify a "grave danger" of the sort Congress had in mind, because "COVID-19 is not a toxic substance or agent." They add that "OSHA cannot attempt to shoehorn this disease into the phrase 'new hazards.'" That phrase, they say, should be understood in context to exclude airborne viruses: "Because Congress expressly allowed for an ETS to be issued for 'substances or agents determined to be toxic or physically harmful,' the catch-all phrase to encompass other hazards must be read in light of, and limited to, items similar to those that come before it."

Nonsense, the government's lawyers say: "The COVID-19 virus is both a physically
harmful agent and a new hazard. It readily fits the definition of an 'agent,' which is 'a chemically, physically, or biologically active principle.'" That's a quote from Merriam-Webster's definition of agent. The government's brief also cites Merriam-Webster's definition of virus as an "infectious agent," and it notes that OSHA has defined "toxic substance or harmful physical agent" to include "biological agent[s](bacteria, virus, fungus, etc.)."

Not so fast, the plaintiffs say in their reply brief:

Respondents rely on definition 2b from Merriam-Webster, which defines "agent" as "a chemically, physically, or biologically active principle." But Merriam-Webster defines "principle" as "an ingredient (such as a chemical) that exhibits or imparts a characteristic quality." And an "ingredient" is "something that enters into a compound or is a component part of any combination or mixture." It is, thus, not a virus.

According to the Oxford Advanced American Dictionary, an "agent" is "a chemical or a substance that produces an effect or a change or is used for a particular purpose." Thus, in the context of the Act, "agent" means a substance that is "used for a particular purpose" in the workplace. The statute was meant to protect workers from the substances with which they are working; it does not allow [OSHA] to mandate a vaccine on 84 million American workers.

That understanding of agent reinforces the plaintiffs' more general argument that OSHA has strayed beyond its mission to protect employees from workplace hazards because its ETS "is not related to the workplace." By that they mean that the danger posed by COVID-19 is not especially acute in the workplace, since the risk exists in every setting where people encounter potential carriers. "OSHA is limited to regulating a 'grave danger' that is more likely to occur in the workplace," they say. "In other instances [cited by the government], employees faced an enhanced risk from the 'grave danger' at the workplace."

The brief mentions OSHA's standard addressing bloodborne pathogens, which aims to protect "workers whose duties involve exposure to blood or other potentially infectious materials." That example reinforces the argument that OSHA is supposed to deal with workplace-specific hazards, which do not include the population-wide threat posed by a contagious disease like COVID-19. As OSHA itself noted in the preamble to its ETS, "COVID-19 is not a uniquely work-related hazard."

At the same time, the bloodborne pathogens standard seems to contradict the plaintiffs' preferred definition of agent, since in that case OSHA treated infectious microorganisms as "harmful physical agents." The government cites that precedent in its brief.

Notably, the bloodborne pathogens standard required that employers offer workers free vaccination against hepatitis B, but it did not mandate vaccination. Neither did the COVID-19 ETS for the health care industry that OSHA published in June.

The plaintiffs argue that the ETS for private employers is "novel" in four ways: "it does not address a toxic substance or agent," "it is not related to the workplace," "it mandates a vaccine for the first time," and "it attempts to protect employees from themselves." That last point is debatable, since OSHA has long required safeguards, such as "personal protective equipment," that are at least partly aimed at preventing workers from accidentally injuring themselves. But the plaintiffs argue that the paternalism embodied in the vaccine mandate breaks new ground because it does not address a workplace-specific hazard.

"The purpose of the [Occupational Safety and Health Act] is to provide workers 'safe and healthful working conditions,'" the brief says. "Yet the ETS attributes the 'grave danger' for workers not to their working conditions but to their own 'lack of vaccination.' This is not a working condition but a private healthcare decision. Protecting employees from themselves, untethered from the workplace, far exceeds the purposes of the Act. Respondents can point to no other precedent for this extreme paternalism."

Although the Occupational Safety and Health Act "is not a catchall to be leveraged when Congress has not otherwise authorized federal action," the plaintiffs say, "that is precisely how it is being used here." The White House presented the ETS as part of a broader effort to boost the nationwide vaccination rate. The aim, it said, is to "reduce the number of unvaccinated Americans by using regulatory powers and other actions to substantially increase the number of Americans covered by vaccination requirements."

But the federal government has no general authority to protect public health, control communicable diseases, or require vaccination, all of which are primarily state responsibilities. That is why the administration decided to couch the vaccine mandate as a workplace safety measure. We'll see whether the courts think that description fits.