When the U.S. Court of Appeals for the 6th Circuit reinstated the Biden administration's vaccine mandate for private employers on Saturday, two members of the three-judge panel were clearly unimpressed by the legal arguments against that policy. But dissenting Judge Joan Larsen thought the businesses and employees challenging the mandate were likely to prevail in arguing that the Occupational Safety and Health Administration (OSHA) had failed to meet the statutory requirements for its "emergency temporary standard" (ETS). Larsen's argument with Judge Jane Stranch, who wrote the majority opinion, and Judge Julia Gibbons, who joined it, hinges largely on the question of how carefully OSHA must tailor its responses to the workplace dangers it perceives.
OSHA's ETS, which it published on November 5, demands that companies with 100 or more employees require them to be vaccinated against COVID-19 or wear face masks and undergo weekly virus testing. The U.S. Court of Appeals for the 5th Circuit stayed the ETS on November 6, citing "grave statutory and constitutional issues." The 5th Circuit extended that stay a week later, when it said the mandate is "fatally flawed" because it "grossly exceeds OSHA's statutory authority."
After that ruling, the many lawsuits challenging the mandate were consolidated and assigned by lottery to the 6th Circuit, which the Biden administration asked to lift the 5th Circuit's stay. In doing so, the 6th Circuit majority criticized the other appeals court for reaching hasty conclusions unsupported by precedent and for failing to properly consider the evidence that OSHA presented in favor of its mandate.
An emergency standard allows OSHA to circumvent the usual rule making process by publishing regulations that take effect immediately. But to avoid the public notice, comment, and hearing requirements that ordinarily apply to OSHA rules, the agency 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."
In her 6th Circuit majority opinion, Stranch has little trouble concluding that COVID-19 qualifies as an "agent" that is "physically harmful." Citing the Merriam-Webster Collegiate Dictionary, she says "an 'agent' is 'a chemically, physically, or biologically active principle,'" while "a virus is defined, in part, as 'any [of a] large group of submicroscopic infectious agents.'"
Stranch notes that the Occupational Safety and Health Act includes a religious exemption that mentions immunization: "Nothing in this or any other provision of this chapter 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." She says "the provision's reference to immunization and its creation of a limited exception to the Act's authorization of standards involving immunization would be rendered meaningless if the statute did not contemplate both that 'harmful agents' include infectious, disease-causing agents, such as viruses, and that OSHA would employ the use of immunizations to combat those agents."
Decades ago, OSHA issued a standard addressing bloodborne pathogens that employees who deal with potentially infectious materials might encounter in the course of their work. Although OSHA never required vaccination as part of that standard, it did require that employers offer workers the opportunity to be immunized against hepatitis B. Since Congress passed legislation related to that standard, Stranch says, it implicitly endorsed the idea that infectious diseases can qualify as workplace hazards subject to OSHA regulation. She also notes that the 2021 American Rescue Plan included OSHA funding "to carry out COVID-19 related worker protection activities."
Stranch rejects the 5th Circuit's argument that OSHA's delay in issuing its ETS, which it published nearly two years after the pandemic began and nearly a year after vaccines became available, suggests the agency is not responding to "a true emergency" in the workplace. That claim, she says, "has no foundation in the record and law and ignores OSHA's explanations." OSHA said it initially hoped voluntary COVID-19 precautions would be adequate but eventually discovered they were not, especially in light of relatively developments such as the emergence of the delta variant.
Does COVID-19 represent a "grave danger" in the workplaces covered by OSHA's order? Stranch says the disease's potentially deadly effects, the opportunities for transmission in the workplace, and documentation of work-related outbreaks are enough to establish that point, especially since "the ultimate determination of what precise level of risk constitutes a 'grave danger' is a 'policy consideration that belongs, in the first instance, to the Agency.'"
Stranch thinks "the Fifth Circuit's conclusion, unadorned by precedent, that OSHA is 'required to make findings of exposure—or at least the presence of COVID-19—in all covered workplaces' is simply wrong." If the 5th Circuit were right, she says, "no hazard could ever rise to the level of 'grave danger' because a risk cannot exist equally in every workplace."
Stranch notes OSHA's estimate that the ETS would "save over 6,500 worker lives and prevent over 250,000 hospitalizations over the course of the next six months," which she says "well exceeds what the Fifth Circuit previously found to present a grave danger." She is referring to a 1984 case in which OSHA estimated than an ETS dealing with asbestos would prevent 80 deaths over six months.
Is OSHA's vaccine/testing/masking rule "necessary" to protect employees from the "grave danger" posed by COVID-19? While OSHA has to show the ETS is "essential to reducing the grave danger asserted," Stranch says, that does not mean OSHA "may use only the means that are absolutely required to quell the grave danger." In her view, the law does not require tailoring as careful as the 5th Circuit implied. "OSHA may lean 'on the side of overprotection rather than underprotection' when promulgating an ETS," she says, and "is not required to proceed 'workplace by workplace.'"
Stranch is no more impressed by the constitutional arguments against the vaccine mandate. The 5th Circuit said the ETS "likely exceeds the federal government's authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the States' police power." Stranch says that claim "miss[es] the mark," because "the ETS regulates employers with more than 100 employees, not individuals," and "it is indisputable that those employers are engaged in commercial activity that Congress has the power to regulate when hiring employees, producing, selling and buying goods, etc."
Stranch likewise thinks it is a stretch to suggest that giving OSHA the authority it is asserting would violate the nondelegation doctrine, which aims to preserve the separation of powers by imposing limits on lawmaking by executive agencies. That doctrine, she notes, has almost never been used to overturn a congressional delegation of power, and its demands are modest: Congress need only give agencies an "intelligible principle" to guide their regulations.
Larsen opens her dissent by chiding Stranch for misrepresenting reality. "The majority opinion describes the emergency rule at issue here as permitting employers 'to determine for themselves how best to minimize the risk of contracting COVID-19 in their workplaces,'" she writes. "With respect, that was the state of federal law before the rule, not after."
Larsen also suggests that Stranch has pulled a bait and switch. "The majority opinion initially agrees…that an emergency standard must be more than 'reasonably necessary'; it must be 'essential,'" she writes. "But then that word, and the concept, disappear from the analysis. What starts as a demand for an 'essential' solution quickly turns into acceptance of any 'effective' or 'meaningful' remedy; and later, acquiescence to a solution with a mere 'reasonable' 'relationship' to the problem. The majority opinion never explains why 'necessary' undergoes such a metamorphosis."
As Larsen sees it, OSHA "has not made the appropriate finding of necessity." She notes that "OSHA's mandate applies, in undifferentiated fashion, to a vast swath of Americans: 84 million workers, 26 million unvaccinated, with varying levels of exposure and risk." OSHA has the burden of explaining "why the rule should apply to a large and diverse class," she says, but the agency "does not do so."
OSHA could have considered "a standard aimed at the most vulnerable workers" or "an exemption for the least," Larsen suggests. Alternatively, OSHA "might have considered a standard aimed at specific industries or types of workplaces with the greatest risk of COVID-19 exposure." Although "OSHA acknowledges that death rates are higher in '[c]ertain occupational sectors,'" Larsen notes, "its rule never considers what results would obtain from targeting those sectors alone."
OSHA argued that careful tailoring was not practical because the agency was responding to an emergency. "The agency's claim of emergency rings hollow," Larsen says. "It waited nearly two years since the beginning of the pandemic and nearly one year since vaccines became available to the public to issue its vaccinate-or-test mandate. The agency does not explain why, in that time, it could not have explored more finely tuned approaches."
Larsen also questions OSHA's finding that COVID-19 poses a "grave danger" in the workplace. She agrees that OSHA's authority is not to limited to hazards that are unique to the workplace; previous standards have addressed fire and noise, for example. But in this case, she says, the agency has failed to cite any data quantifying the risk of COVID-19 infection at work, as opposed to the general risk for people of working age. And while "OSHA has heretofore respected that its regulatory authority extends no further than the workplace walls," in this case the precaution it favors (vaccination) is not one that people can put on at work and take off when they leave.
In some respects, Larsen thinks, OSHA's judgments are inconsistent with the numbers it cites. "OSHA has determined that no vaccinated worker is in 'grave danger,' whereas all unvaccinated workers are," Larsen writes. "But the government's own data reveal that the death rate for unvaccinated people between the ages of 18 and 29 is roughly equivalent to that of vaccinated persons between 50 and 64. So an unvaccinated 18-year-old bears the same risk as a vaccinated 50-year-old. And yet, the 18-year-old is in grave danger, while the 50-year-old is not. One of these conclusions must be wrong; either way is a problem for OSHA's rule."