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Breaking: 6th Circuit Dissolves 5th Circuit Stay in OSHA Mandate Case

Divided panel (Stranch and Gibbons) rules for Biden Administration; Judge Larsen dissents.

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Judge Stranch's majority opinion is here. It begins:

The COVID-19 pandemic has wreaked havoc across America, leading to the loss of over 800,000 lives, shutting down workplaces and jobs across the country, and threatening our economy. Throughout, American employees have been trying to survive financially and hoping to find a way to return to their jobs. Despite access to vaccines and better testing, however, the virus rages on, mutating into different variants, and posing new risks. Recognizing that the "old normal" is not going to return, employers and employees have sought new models for a workplace that will protect the safety and health of employees who earn their living there. In need of guidance on how to protect their employees from COVID-19 transmission while reopening business, employers turned to the Occupational Safety and Health Administration (OSHA or the Agency), the federal agency tasked with assuring a safe and healthful workplace. On November 5, 2021, OSHA issued an EmergencyTemporary Standard (ETS or the standard) to protect the health of employees by mitigating spread of this historically unprecedented virus in the workplace. The ETS requires that employees be vaccinated or wear a protective face covering and take weekly tests but allows employers to choose the policy implementing those requirements that is best suited to their workplace. The next day, the U.S. Court of Appeals for the Fifth Circuit stayed the ETS pending judicial review, and it renewed that decision in an opinion issued on November 12. Under 28 U.S.C. § 2112(a)(3), petitions challenging the ETS—filed in Circuits across the nation—were consolidated into this court. Pursuant to our authority under 28 U.S.C. § 2112(a)(4), we DISSOLVE the stay issued by the Fifth Circuit for the following reasons.

Judge Gibbons wrote a short concurring opinion, with an ode to Chevron:

Reasonable minds may disagree on OSHA's approach to the pandemic, but we do not substitute our judgment for that of OSHA, which has been tasked by Congress with policy-making responsibilities. See Charles D. Bonnano Linen Serv., Inc. v. NLRB, 454 U.S. 404, 418 (1982). This limitation is constitutionally mandated, separating our branch from our political co-branches. "[F]ederal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do." Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 866 (1984). Beyond constitutional limitations, the work of an agency, often scientific and technical in nature, is outside our expertise. See Kisor v. Wilkie, 139 S. Ct. 2400, 2413 (2019).

Our only responsibility is to determine whether OSHA has likely acted within the bounds of its statutory authority and the Constitution. As it likely has done so, I concur.

Judge Larsen wrote a 20-page dissent. It begins:

As the Supreme Court has very recently reminded us, "our system does not permit agencies to act unlawfully even in pursuit of desirable ends." Ala. Ass'n of Realtors v. Dep't of Health & Hum. Servs., 141 S. Ct. 2485, 2490 (2021). The majority's theme is that questions of health science and policy lie beyond the judicial ken. I agree. But this case asks a legal question: whether Congress authorized the action the agency took. That question is the bread and butter of federal courts. And this case can be resolved using ordinary tools of statutory interpretation and bedrock principles of administrative law. These tell us that petitioners are likely to succeed on the merits, so I would stay OSHA's emergency rule pending final review. 

Judge Larsen had voted to take the case en banc initially. This split tells us that Judge Griffin, who was not on the panel, agreed not to go en banc.

NEXT: A Jurisprudential Feast Put on Ice

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  1. So do the 5th and 6th circuits now have a steel cage death match?

    1. "Reasonable minds may disagree on OSHA's approach to the pandemic, but we do not substitute our judgment for that of OSHA, which has been tasked by Congress with policy-making responsibilities."

      It wasn't the judgment of OSHA to mandate the vaccine. It was the judgment of OSHA that they better obey the boss. It was the Biden administration that told them to mandate the vaccine. It's not as if they made a scientific decision based upon researched potential harm in the work place where an employer had over 100 employees. They were just doing what the boss said to do.

      1. I don't think reasonable minds can disagree. If you for literal Hitler Brandon and his fascist forced medical treatment scheme then you are against liberty and freedom. Simple as that.

        1. Who has proposed application of force in administering vaccines? Please be specific.

          1. Force doesn't always come at the barrel of a gun. The fascist regimes of the early 20th century excelled at ostensibly giving people choices, but making it all but impossible to actually make a choice the government hasn't already made for you. Modern progressives have learned those lessons well

            1. Those who yap and yammer about force should defend -- or retract -- their hyperbole when called out on it.

              1. For instance, giving you a choice of accepting the vaccine, or weekly tests, where You have to pay for the test yourself, and it's no longer subsidized. Take the shot, or a $5K hit to your income after taxes.

                And if weekly doesn't do the job, they could always kick it up to daily.

                1. Yes, the same scary regime that requires medical professionals to wear masks, gloves, and other PPP, that ensures they sterilize equipment before using it in procedure. The same scary regime that requires children in K-12 have vaccinations, that requires adults attending in-person college classes to have vaccinations, etc., etc. It's weird that people make this particular vaccine the moment government crossed into authoritarianism, all while recognizing (tacitly if not explicitly) that the general principle that, for some activities, the government may require some vaccines and other protective measures if you are going to engage in those activities.

                  It's bonkers that Covid has become so politicized that it can't simply be a question of whether science supports requiring this particular vaccine for health care workers. The concept of requiring vaccines is well-accepted. It may be argued that the lack of widespread acceptance of this vaccine is a reason not to mandate it, but it doesn't make support of a mandate authoritarian.

                  Or are you arguing that the requirement that children be vaccinated for tetanus, diphtheria, polio, measles, mumps, rubella, hepatitis B, varicella (chickenpox), meningitis and pertussis (whooping cough) prior to attending elementary school is authoritarian?

                  Or is it an ordinary policy disagreement?

                  1. NOVA Lawyer : "It's bonkers that Covid has become so politicized..."

                    Bottom line? The Right's leaders decided there was political gain in birtherism-style disinformation on covid, so they became history's first pro-disease party. They told their followers the disease wasn't serious, its effects exaggerated, the covid statics lies, the death numbers fabricated, all measures against to be resisted at any cost, their justification untrue, the medical experts nazi-grade villains, every quack treatment a secret hidden from the public and every vaccine government tyranny.

                    After deciding this course nets a few polling points with their base, they've rarely missed a chance to coddle or defend covid. When joining the National Guard in the mid-80s, there was a long list of vaccines I was required to have as a condition of service. Just yesterday I read several Republican governors demand the NG commanders in their state disobey Pentagon orders to get their troops vaccinated. The Right even issued a fatwah against Big Bird, for God's sake.

                    Every person in these comments whining about "government tyranny" has lived with vaccine mandates their entire lives. Their parents lived with vaccine mandates. Their family, relatives, friends, co-workers and acquaintances have all lived with vaccine mandates.

                    But now their handlers tell them to forget every bit of that history, then program them with mindless outrage & hysteria. A Monmouth Poll this week found 96% of Democrats were at least partially vaccinated, 79% of Independents and only 54% of Republicans. That's what happens when you belong to the pro-disease party.

                    How did right-wingers become such goddamn mindless gullible docile sheep?

                    https://jabberwocking.com/heres-how-much-vaccination-improves-your-odds-of-staying-alive/

                    1. grb,

                      You are exactly right. It's depressing. And dangerous. Extremely dangerous.

                2. Not sure it's a 5K hit. Plenty of free and low cost options, as low as $20. Once a week, that's $1k. Some people have to buy their own steel-toed shoes, etc. This isn't a bankrupt the person level of cost. Yes, it isn't cheap. Yes, $20 or $50 a week can be a major difference in people's lives, but this isn't "your money or your life".

                  If you choose to not take a vaccine which puts you and others of greater risk (as determined by the CDC/OSHA, who could be wrong, but that's their job and their purview), then, yeah, you have to pay a little extra for the privilege. (You don't get this sort of option when sending your children to school, the alternatives to which will reasonably cost far more than weekly Covid tests.)

            2. China is currently engaged in computerized, tracked social credit scoring. Piss off the powers that be, and you get knocked down, and can't get loans or rent somewhere, maybe even get on a bus.

              This is ironic given one of the complaints of Marx was tbe elites bought off the bourgeoisie middle class (and hence they would not be useful in The Revolution) by giving them the trappings of wealth like loans and checking accounts.

              1. What you describe is authoritarian. But what makes it authoritarian is not making school attendance, etc. dependent on having the tetanus, measles, covid, etc. vaccines. That's normal and, I would imagine, required vaccinations are the norm in every modern, free and democratic society. On the other hand, giving people a social credit score based on their attendance at party meetings, whether they say critical things of the government, associate with people the government doesn't like, that is what makes China's system authoritarian.

                And, to be clear, any such social credit tracking system is authoritarian because it inevitably will lead to abuses such as those practiced by China. It is more than just that China does too much with it, the concept itself is authoritarian. But that is fundamentally different from requiring proof of vaccination for various activities.

          2. "Who has proposed application of force in administering vaccines?"

            What happens if I hire somebody in violation of the mandate? At some point, it always comes down to force.

            1. What force are you referring to? Please be specific.

              1. You lose your job because you refuse to take a mRNA gene treatment that hasn't cleared stage III clinical trials and whose manufacturer has no legal liability for it. As a result you lose your home because you can't pay your bills and end up homeless.

                Sounds like force to me.

                1. A choice among alternatives is not force. Force would be being held down while being injected.

                  1. If I say to you, "Your money or your life!" the fact that I've given you a choice of which doesn't erase the fact that I'm coercing you. Unless "none of the above" is an option, you're being forced.

                  2. There it is. I thought I had imagined hearing that sentiment online 25 years ago in the BBS era. Guy with a gun gives you a choice between doing something you don't want to do with your own body or stuff, or starving, ergo not violent.

                    Thanks for reminding me some live unironically in a world of "reductio ad absurdum, what's that?"

                  3. not guilty is not clever.

                    1. I'm not trying to be clever. I'm calling out an abuse of the language.

                    2. Yeah, and since you're not half as clever as you think you are, you're doing it wrong. If you're going to be pedantic, at least get the semantics right.

                  4. So as long as a rapist provides a choice between allow this to happen or die, then all good in your world. Totally consentual by leftist logic here.

                2. No manufacturer of vaccines has legal liability outside of certain situations and hasn't since the 1980s.

              2. *Force majeure* (lit. superior force, with the sense of overwhelming force, from French)

          3. OSHA. That's what this case is about. You may want to research it further.

            1. Those who kvetch about ¨force¨ are trivializing the meaning of the word.

              1. Those who claim you're still "free" so long as you get to chose which of two unpleasant fates you endure, are trivializing the meaning of the word.

    2. The Fifth Circuit knew it was about to lose jurisdiction and had no business granting that stay in the first place. A Sixth Circuit panel was the only intermediate appellate court that had any business hearing this.

      SCOTUS review is available to the losing side.

      1. Nah, 5th circuit had every business granting that stay, because the courts job is to protect people's rights.

        1. Not in cases where there's a congressional statute creating a circuit lottery

        2. The Fifth Circuit was empowered to initially grant the stay, and the Sixth Circuit was empowered to dissolve it. Judge Stranch´s majority opinion details how the Fifth Circuit´s action was improvident.

  2. In need of guidance on how to protect their employees from COVID-19 transmission while reopening business, employers turned to the Occupational Safety and Health Administration (OSHA or the Agency), the federal agency tasked with assuring a safe and healthful workplace.

    I don't think the court framed this honestly. What OSHA is giving is not mere "guidance". Employers looking for "guidance" can turn to the CDC. They only turn to OSHA on this matter so they don't get fined out of existence.

    1. They of course didn't. This is later in the opinion:

      "The ETS does not require anyone to be vaccinated"

      Its such BS. Its a BS decision that ignores years of precedent, law, and the constitution. We'll see if the SC does its job or not.

      1. Any employee who is willing to live with (or maybe die from) the consequences is free to refuse the vaccine.

        1. Yes they are, and they of rights should not have their job threatened for that.

          If people are concerned they are working with them, all the have to do is get the vaccine, right? So who cares about the unvaccinated?

          1. One of the consequences may be loss of employment, but that is the free choice of the refusnik.

            1. Yeah, one of the consequences may be being sent to the gulag or being shot in the head but that is the free choice of the refusnik. You're pathetic.

            2. That is the opposite of free choice bub.

        2. Wow, I'm "free" to lose my job for not letting my employer dictate I take a vaccine that has no legal liability for a virus I have a 1 in 100,000 chance of dying from.

          Such freedom.

          1. That is the way that employment at will works.

            1. How many 1-in-100,000 chances of death does at-will employment justify an employer imposing without additional compensation?

              1. The point of employment at will is that the employer is under no duty to justify.

                But I suspect you know that.

            2. This is not employment at will. This is a government agency, forced by Biden, forcing employers to force their people to get vaccinated.

              1. The penalty for an employer´s non-compliance is a fine. A steep fine, to be sure, but a fine is not force. No employee is forced to do anything. Like any other condition of employment, the employee is free to accept or reject. Facing an unpleasant choice is not being forced.

                1. Oh stop. I support vaccine mandates but of course imposing a fine that puts your company out of business from a governmental agency is forcing someone to do something.

                2. Look, NG, you may ignore things but that's just foolish.

                  I work in safety. An agency fine isn't like a parking ticket that you can pay and go on. You have two parts, a fine and an agreed order. An agreed order that the agency details what you did wrong and how you are going to fix it. Deliberate violation of the agreed order is grounds for criminal charges.

                  So, if companies did what you are saying, they would not merely "pay a fine" but they would pay the fine and do it anyway or the company officers would be walking out in handcuffs.

                  That's not a choice. That's a mandate. You can argue your point, but don't lie. It's only undermines your position.

            3. Once upon a time we had employment at wllin this country, you aren't really claiming we still do are you?

        3. n_g,
          If there was scientific evaluation behind OSHA's mandate, there would not be the 100 employee cutoff. That seems like a convenient oversight by the 6th Circuit.
          As for whether 5th 5th overstepped, I don't think so. They are just furnish a reason to be considered by SCOTUS to a cert appeal.

          1. "there would not be the 100 employee cutoff."

            Not really true. The 100 employee cutoff is there for any number of mandates as a rough means of balancing the interests of individuals and small groups to have the more absolute freedom about which so many here are concerned against the societal interests in having large organizations operate in ways that a safe to workers, non-discriminatory, etc. So the 100 employee cutoff here could just be importing a standard made up for other situations into this situation. It doesn't have to have a stand-alone scientific basis to be legitimate.

            It is for this reason I find the "they made a 100 employee cutoff, so there is no science here" argument either misguided or disingenuous

            Which is not to say one way or the other whether the mandate as written and implemented is or is not backed by the best science. My only point is that the "100 employee" argument is, if not specious, then woefully oversimplified.

          2. Whenever there is no limiting factors ... lawyer: Look! No limiting factor! Regulation is ujderstitutional due to a lack of limiting principles!

            If there is a limiting factor ... lawyer: Look! Limiting factors! If you actually cared about this issue you wouldn't have limiting (agency: but you just told us to) Silence!

            And people wonder why our government is dysfunctional

    2. This is weird. If companies are concerned, let them mandate the vaccine for their own employees.

  3. Good grief. What exactly can OSHA *not* do by this standard? Hope SCOTUS doesn't drop the ball on this one.

    1. Something that isn’t a safety rule applied to workplaces?

      1. How can you have a safety rule applied to workplaces for a risk that isn't in any way particular to workplaces?

        1. The chair I am sitting at right now, while typing on my computer, is not in a workplace. If the same chair were provided to me by an employer, it would be potentially the subject of ergonomic regulation by OSHA. If you have a problem with that, you need to amend the OSHA statute (and that would be a very bad idea because OSHA should be able to regulate workplace risks even if the same risks occur outside the workplace).

          1. Your home chair may or may not be OSHA-approved, but since it is your home chair you have the option of using one OSHA does not approve of because they have no jurisdiction outside of work. One does not have the option of being vaccinated at work and unvaccinated at home, so by mandating a medical procedure they are necessarily extending the jurisdiction beyond the workplace

            1. That may be a distinction, but it's not reflected anywhere in the OSHA statute. Indeed, off- premises conduct can affect workplace safety: for instance, a rule that an employee may not operate a piece of machinery while inebriated regulates off-site drinking as well as on-site drinking.

              Workplaces would be quite a bit less safe if OSHA were construed as not having the power to regulate anything that might endanger fellow workers but which also applies off premises. This would be a brazen attempt to flout the intent of the statutory scheme. And it would require an amendment to the OSHA statute- one which would, by the way, never pass.

              1. "'its not reflected anywhere in the OSHA statute"

                It is in fact

                "a rule that an employee may not operate a piece of machinery while inebriated regulates off-site drinking as well as on-site drinking."

                No it doesn't because the person has the choice of not coming to work THAT day.

                OSHA does NOT have the power outside of work. END OF STORY.

                1. Again, you guys are trying to write finer and finer distinctions into the OSHA statute because you don't like the one Congress actually passed. It's pathetic and extra-legal.

              2. "a rule that an employee may not operate a piece of machinery while inebriated regulates off-site drinking as well as on-site drinking"

                No, it obviously does not -- it regulates who can operate that machinery. In the workplace. It does not regulate drinking.

                1. That argument doesn't work, because this regulates who can come to work, not who gets vaccines.

                  Again, you guys need to stop looking for artificial limitations and accept that sometimes the law is against you.

                  1. Basically this. Just because you don't like a law doesn't make it authoritarian.

                    Brett, Michael, etc.,

                    Make the argument that it is authoritarian to require students to get vaccines to attend elementary school and then I'll believe you are serious that you think this particular vaccine mandate is authoritarian. Otherwise, just make the stronger, probably more convincing argument that there are all sorts of reasons to be against this particular vaccine mandate (without endorsing any of these as true, your arguments could be: it's less widely accepted, the disease isn't as deadly/dangerous, the vaccine is less tested/proven, this involves adults rather than children who the state has a greater interest in protecting, etc.).

                    The "it's your money or your life" argument is disingenuous. It marks the person making it as unserious.

                    1. Not so disingenuous. You completely ignore the fact that there are real people facing very real and dire consequences if mandated to make this "choice." Do something against your will, or lose everything you've worked and sacrificed for? Tenure. A company you built from the ground up, expertise that can't be replaced. Shut out from working in your field because all the choices are exactly the fucking same: do as the State requires because of optics and CYA and votes and polls, or lose the ability to make a living for yourself and your family. Lose your sense of purpose, your reason to get up in the morning. These aren't numbers, you asshole, stats that you can push around with your keen "legal" mind. These are your fellow human beings.

                    2. "You completely ignore the fact that there are real people facing very real and dire consequences if mandated to make this "choice." Do something against your will, or lose everything you've worked and sacrificed for? "

                      This is the disingenuous part. I am not ignoring that real people face real consequences. You are exaggerating the consequences beyond all rationality.

                      First, covid isn't the first vaccine mandate and won't be the last. So, you better save some outrage before spending it all here.

                      Second, as pointed out, the choice isn't between doing something against your will (getting vaccinated) or "lose everything you've worked and sacrificed for". You can get tested weekly. This costs somewhere around $1-2k per year, so not entirely trivial, but hardly "everything you've worked and sacrificed for".

                      The hyperbole doesn't help. Well, apparently the jury is still out on that, as the current "right" seems quite susceptible to hyperbole of all types, but most rational people are not. The vaccines are safe and effective. Vaccine mandates have been around in the U.S. since at least polio. This isn't new, it isn't particularly onerous or intrusive, there is an opt-out provision that is also not terribly coercive (particularly as compared to losing "everything you've worked for"). Try rational argument and avoiding random ad hominem attacks of those with whom you disagree.

                      But, you're obviously a little hysterical already, so I doubt calming down to a rational discussion is within you capabilities at the moment.

                    3. I'm being hyperbolic? Did you READ Stranch's ruling? It reads like a hysterical high schooler's diary entry. And testing is just as intrusive as getting the vaccine. I don't care how "effective" or "safe" it is, mandating anyone get a medical procedure against their will as a condition of employment because of optics is criminal. We KNOW the polio vaccine works. Same for measles, tetanus, yellow fever. We are currently begin shown how ineffective the covid vaxx is. Good ideas, ones that make sense, never require this kind of force or song and dance to convince the public they are doing the right thing.

          2. No, neither the chair itself is not regulated by OSHA. What OSHA regulates is what chairs your employer my provide to you in the workplace.

            Risks associated with your workplace chair are risks particular to the workplace, they are not generic risks of living.

            Please quote the exact text in the OSHA act that explicitly authorizes OSHA to regulate risks outside of the workplace.

            1. I don't need to. A vaccine protects people in the workplace. You guys are just writing restrictions into the law because you don't want to abide by what Congress passed. The statute says nothing about limiting OSHA's power as you propose.

              1. Except it doesn't. We know from CDC and FDA statements that the vaccinations have no significant effect on how COVID can be caught or spread. Their effect is reducing severe outcomes.

                That is, at best, tangential to any legitimate safety concerns at the workplace as there is no change in how the workplace acts, but reduction in that one person's long-term risks.

                As you ignored the question the first time. If this is allowed, what is not allowed? Where do you draw the line?

                My concern is that this makes a mockery of the concept of medical choice. If you want to avoid a school vaccine mandate, you can choose to homeschool your children or go to a private school. Schools have also been granting exceptions to this mandate for numerous reasons for decades now. This has no exceptions that are widely available. Given that there is nothing special about COVID (it's only one disease out of many, and it's not particularly deadly in the grand scheme of things), how far will this nearly unlimited intervention into medical choice go?

                In short.
                Actual data shows that my choice has no impact on how the disease spreads. Therefore, it's my body and my choice.

                I wish that the Democrats remembered their own slogans.

                1. . We know from CDC and FDA statements that the vaccinations have no significant effect on how COVID can be caught or spread.

                  Falsehood #1.

                  Given that there is nothing special about COVID (it's only one disease out of many, and it's not particularly deadly in the grand scheme of things),

                  Falsehood #2.

                  Why are Trumpkins so delusional? What do you get out of having spent two years pretending that a worldwide pandemic is just a mild case of the flu?

                  1. David, I'm sorry, do I have to pull out the actual quotations? Multiple studies have shown no significant reduction. When there are conflicting studies, you always trust the negatives more.

                    And there is nothing special about COVID. It's merely novel so people don't have built up immunity. Compared to the various poxes, it actually has a very low death rate and is notably less deadly than measles (which killed one out of a thousand healthy children. COVID affects the weak and elderly and has closer to a one in a million death rate for healthy children without complicating factors). It appears to have similar mutating abilities to influenza.

                    There is nothing that allows restrictions on COVID that doesn't also mandate restrictions on measles and influenza, or any other disease.

          3. Dilan,
            OSHA regulated or not, you chair at home should have a 5 or more star base. Four star bases are dangerous.

            1. Especially if the Romulans are on the warpath.

              1. Grazie, Sig. Bevalacqua

          4. Are you always this stupid? So you equate your home environment to your work environment to say what exactly? That OHSA can have rules for work but not home? No shit. You know what they cannot mandate is you buy ergonomic chairs for home or lose your job.

            So how do you limit this? Being a fat fuck is a workplace risk for some jobs, can they mandate your diet? Your stretch says yes.

        2. There’s nothing in the OSH Act that says the government can only regulate workplace safety if it doesn’t have an incidental benefit of also making people healthier outside of work, too.

          1. There is nothing in there that says they can though. And that's way more important.

            They have no power here.

            1. Have you read Judge Stranch's opinion? It seems well reasoned to me.

              1. I mean, are these people aware that OSHA already had rules regarding various vaccine mandates, including for MMR, Hep-B, Tetanus, etc.? If you want to make the broad argument that any vaccine requirement for any workers is outside OSHA's purview or necessarily authoritarian, then we crossed that rubicon decades ago, but make that argument.

                if you don't like this vaccine, then argue about this vaccine, which is a mere policy choice and not fundamentally different (in terms of OSHA's authority or an authoritarian state) from the many other vaccines and health measures already mandated. But don't be dishonest and pretend this vaccine mandate is uniquely authoritarian or uniquely outside the scope of OSHA's authority (with the caveat that arguments about whether the rule was correctly drafted, approved, issued, implemented, enforced, etc. are legit, but I haven't seen anyone making those arguments, it's all "your money or your life!").

                1. All those vaccines you mention are, unlike the vaxx for COVID-19, actually effective at stopping disease and transmission. Those diseases are also far more dangerous to boot. It's one thing as well to know the terms of employment before signing on. It's another to have the rug pulled out from under you by a bullshit mandate that isn't actually about health at all.

                  1. None of them are 100% effective. Some are far more dangerous, but not sure all of them necessarily are.

                    In any case, those are arguments as to whether, as a matter of policy, Covid vaccines should be mandated too. Those factual disputes say nothing about whether OSHA has the authority to issue vaccine mandates. It pretty clear does. Whether it followed proper procedures to do so in this case might still be at issue, but the commenter questioned whether OSHA could require employers/employees to get vaccinated. They can.

      2. How is getting a vaccine a safety rule? Seriously. What EVIDENCE, gathered through extensive research, has been presented to the American public that we are in imminent danger of catching and spreading COVID in the workplace?

    2. "What exactly can OSHA *not* do by this standard?"

      Maybe, just maybe, execute someone who has been born alive.

      1. At least until it's demonstrated they might be dangerous in the workplace.

      2. OSHA has long mandated various vaccines in various situations. So be serious. This overwrought "what can they not do!" is just silly and marks you as unserious.

        Don't be an enemy of freedom. Make a serious argument.

          1. I initially misread an OSHA blog post on Hep-B. They do not require that employees get vaccinated. Although they do require various precautions be implemented and, also, that employees who may be exposed to blood, etc., be offered the Hep-B vaccine, that they must specifically decline it, and that it must be made available free of charge if they later change their mind.

            So, no, it is not currently a mandate.

            Per OSHA rules, employers are permitted to require employees to hep-B, tuberculosis, and other vaccines. But, this is different from OSHA itself mandating the vaccinations.

            More generally, other government organizations require vaccines to go to school, university, etc., as well as some vaccine mandates for health care workers (all pre-covid). But, this does not go to whether OSHA has historically required vaccination.

            1. NOVA, if the rule was framed in this way, the same as existing Hepatitis requirements, there would be far fewer objections. It respects medical choice.

              Also, please note that all of these requirements are in response to particular risks of the job. "Being a person that breathes" is not sufficient.

  4. This is totally ridiculous. It's obvious the vaccine is not stopping the spread of Covid. I can't see how OSHA can say the potential good from getting the vaccine is greater than the potential harm when it doesn't stop the spread of the virus and they do not know the long term effects of the vaccine.

    The government really, really, wants everyone vaccinated and I don't think it is for our health. Something is not adding up here.

    1. Brett Bellmore has a twin named CindyF?

      1. That's unkind. Anyone who is a big enough idiot to not understand that "slows and reduces the rate of infections/hospitalizations/deaths" is a positive result, even in "does not 100% prevent" situations is someone who should be pitied, and should not be ridiculed. Cindy, and her family and friends, will not be vaccinated, and she or someone she cares about, will get very sick and/or will die. She is going to suffer enough...please don't pile on by reminding her of her appalling stupidity.

        1. ...not understa%nd that "slows and reduces the rate of infections/hospitalizations/deaths" is a positive result

          Professional Sports teams have been slammed by covid infections.
          A very defined population, with their own strictly enforced, anti covid protocols, and +95% vaccination rate. Evidence of "slow and reduces" is not at all evident.
          The larger point. We are long past the special granting of emergency powers. 21 months, we've been doing this dance, Congress has ample time and opportunity to address safety threats through legislation.

          1. It appears you compared sports teams with...nothing.

            Reduce requires 2 populations to compare. You provide one, and then declare victory.

            1. The same population with and without vaccination.
              last year without vaccination NHL, NFL, NBA had the virus mess up the season. Now with vaccination +95% rate of vaccination, same results. "Slows and reduces" ?
              While a fabricated metric, case positivity is going up despite more than 60% of the population vaccinated

              Surely we are allowed to compare before and after.

              1. So now you're asking a threshold question - did the rate go high enough for the season to get messed up.
                That'll ping whether the case positivity is like 10% or 60%.

                I also know you aren't touching fatality or hospitalization here.

                This is one of those feels right to you things. To be fair, I and most of the population join you in being crap at evaluating statistics without slavish devotion to algorithm. Humans are just not good at that.

            2. most of the positive covid test on sports teams are asymptomatic atheletes.

              Extreme paranoia safetyism

              1. You do know Covid spreads, yes?

                1. Sarcastr0
                  December.18.2021 at 9:53 am
                  Flag Comment Mute User
                  "You do know Covid spreads, yes?"

                  You do know that transmission of covid from asymptomatic individuals is very limited.
                  You do know that this is a respiratory virus. Those extreme safetyism protocols will have virtually zero effect.

                  You have look at the long term goal, instead of the short term trivial benefits of the hyper-safetyism protocols such as quaranteeing aystompatic people.

                  1. transmission of covid from asymptomatic individuals is very limited

                    This is not true, unless you have a very broad definition of limited. As a respiratory virus, mere breathing can transmit it even when asymptomatic. Hence masks being a thing.

                    1. Sarcastr0
                      December.18.2021 at 1:16 pm
                      Flag Comment Mute User
                      "transmission of covid from asymptomatic individuals is very limited

                      This is not true, unless you have a very broad definition of limited. As a respiratory virus, mere breathing can transmit it even when asymptomatic. Hence masks being a thing."

                      Sarcastro - are you that seriously behind on the science. Transmission of Covid by the asymptomatic is a small fraction of the total transmission. Credible estimate of transmission covid from the asymptomatic is less than 5%. The majority of transmission of covid is from less than 20% of the infected.

                    2. Joe,

                      You aren't doing statistics right or your underlying analysis correctly.

                      First, on the science (and this is March 2021, so maybe you have something new):

                      Wilmes et al. recently reported in The Lancet Regional Health – Europe that asymptomatic index cases (AIC) play an important role in the transmission and spread of SARS-CoV2 infections [[1]]. Secondary attack rates of 283 AIC were significant (0.02) but lower than those of the 567 symptomatic index cases (SIC; 0.04). AIC infected on average 0.6 contacts, only slightly less than SIC (0.7 contacts). Higher values but similar differences were found within households.
                      These results are in line with 13 other studies including 111 AIC, reviewed in a recent meta-analysis [[2]]. Transmission rates of AIC ranged from 0–2.2% compared to 0.8–15.4% for SIC [[2]]. Another meta-analysis found that household transmission from AIC was 0–4.9% compared to 18.0%; for SIC [[3]]. In another household study, AIC were four times less likely to pass the virus to a household contact, but ultimately caused one fifth of household infections [[4]]. All of these studies agree that AIC transmit SARS-COV2 to contacts, although to a somewhat lesser extent than SIC.

                      The bottom line is that asymptomatic individuals do transmit Covid, though at rates estimated at from maybe half to a quarter the rate of symptomatic. You appear far too confident about the 5/20 number.

                      Second, the relevant inquiry isn't what the difference in transmission rates comparing symptomatic and asymptomatic carriers. The relevant inquiry is whether the rate of transmission from asymptomatic carriers is high enough to warrant quarantining people who test positive. That depends on a lot more than just saying "5 percent sounds like a low number to me." Frankly, that's a fairly high number, depending on the consequences of transmission.

                      And the professional sports leagues get to choose what level of safety they think is appropriate.

                    3. Nova - the Wilmes / lancet study was primary from other studies in early to mid 2020. The following study is using much more current data.
                      Virology journal Transmission frequency of COVID-19 through pre-symptomatic and asymptomatic patients in AJK: a report of 201 case july 2021
                      Results
                      Overall, a total of 201 COVID-19 patients had contact with 7168 people in 24 h with an average of 35.66 contacts per patient, ranging from a minimum of 4 to maximum of 87 contacts (meetings). Out of 7168 persons met, infection was detected in 64 (0.89%). For the 155 symptomatic patients, a total of 5611 contacted persons were traced before appearance of symptoms (pre-symptomatic) in last 24 h with an average of 36.20 meetings per patient. The infection was transmitted in 63 (1.12%) people with 5548 (98.88%) remaining uninfected. Out of the 63 transmissions, 62 (98.4%) were traced within 6 h before symptom onset, while only 1 was identified in the 6–12 h timeframe before symptoms. A total of 1557 persons were traced having meeting/contacts with asymptomatic cases in last 24 h before infection confirmation. Out of these 1557 persons, only 1 was found to be infected and the infection rate was calculated to be 0.06%. Statistically, the transmission rate by pre-symptomatic patients was found to be significantly higher than the transmission rate by asymptomatic individuals (P < 0.05).

                      Granted there are numerous studies showing 50%+ transmission from Asymptomatic individuals, yet those are simply not credible.

                    4. Nova's comment - "Second, the relevant inquiry isn't what the difference in transmission rates comparing symptomatic and asymptomatic carriers. The relevant inquiry is whether the rate of transmission from asymptomatic carriers is high enough to warrant quarantining people who test positive. That depends on a lot more than just saying "5 percent sounds like a low number to me." Frankly, that's a fairly high number, depending on the consequences of transmission."

                      your comment highlights the problem of emerging from the covid pandemic based on the hyper sensitive safetyism - take zero risks. The athletes, children and others who are otherwise healthy are at extremely low risk of serious illness. Covid is not going away and attempts to erradicate are futile. We have to learn to live with it. The fastest and safest long term solution is to do what Sweden did.

                    5. Joe,

                      Thanks for that. I didn't read the whole study. I will note that the study indicates that the transmission rate for pre-symptomatic people is significantly higher than for asymptomatic people. You can't categorize people who test positive into one of those groups until sufficient time has passed. If the true rate of transmission from asymptomatic people is 0.06%, that would be significant and that is a far cry from the 5% upper bound you cited earlier. Which just goes to show that the science is in flux. Noted that you would draw your line a different place, but not sure it's unreasonable for sports leagues (for a number of reasons) to set their standard higher.

                      Joe - "The fastest and safest long term solution is to do what Sweden did."

                      First, Sweden has a 1500/M death rate from Covid compared to roughly 500/M in Denmark and much lower than that in the other demographically/geographically similar countries of Denmark and Norway. While you may be placing your bets on that evening out over the very long term, last I heard even the Swedes decided their way was not working well compared to other countries, so they tightened up. You have a lot of work to do in providing a basis to say Sweden's choice was superior when their death rate numbers are three times worse and their economic numbers don't appear significantly (or any?) better than their peers (in terms of 2020 GDP growth Norway was 40th, Sweden 70th, Finland 71st, and Denmark 74th). What did they gain with going full "let's just live with it" in the early months? So far, it wouldn't appear they gained much beyond 3x the death rate.

                      Having said that, there are obviously trade-offs and everyone wants something different. But, my very rudimentary understanding of pandemics, these types of conditions tend to become less deadly over time as killing the host is often a bad evolutionary play, so just because we might reasonably choose not to operate completely on normal now doesn't mean it won't make sense to do so in the future as more people are vaccinated and/or achieve some level of natural immunity and the virus evolves to be less dangerous, and better treatments become available. In other words, the choice isn't between living with masks/testing/quarantines/social distancing forever or just go about our business normally from the start.

                      We are transitioning to more normal and that probably makes sense and can happen more quickly the more people get vaccinated. But going full Sweden is something, from my understanding, even Sweden decided was a bad idea. (https://www.euronews.com/2021/10/29/sweden-s-covid-19-pandemic-response-was-too-slow-says-commission-report)

            3. Good rational article regarding covid in pro sports teams.
              from healthy skeptic.

              "Despite extremely high vaccination rates across all these sports, teams are having high numbers of players and staff test positive and be quarantined and are then testing other players and staff and quarantining them and so on. Almost all these “cases” are asymptomatic. I simply don’t have a big enough audience, because I explain repeatedly, and this is just common sense, that if you keep using PCR tests the way we have been, we are going to keep finding non-case “cases”. And that is what is happening in professional sports. The only solution is to stop any testing of asymptomatic persons. Period. And to take positive tests of symptomatic persons and retest them immediately, regularly culture a random sample of positives, and define an infectiousness threshold that only isolates persons who are actually likely to be infectious. And quarantining asymptomatic persons is similarly dumb policy, especially if the person is vaccinated. "

              1. Note the lack of numbers and qualitative terms.

                This is bullshit.

                1. Sarcastro - difficult to respond to someone who is that far behind on the covid studies.

                  1. That very fact shows you don't know how to read studies.

                    A single study doesn't tell you anything concrete.

                    *especially* one with an n of 201.

                2. Why "Joe_dallas" keeps relying on a blog from a guy with no relevant scientific expertise is left as an exercise to the reader.

                  1. And you'll also notice how he never actually cites any studies at all. He just makes vague references to this blog and claims that there are studies there. Apparently he hasn't heard of hyperlinking.

                    1. The guy you claim has no scientific experience cites 10 or more new studies each week. You chose not to read them. volokh puts my links into moderation - yet I have give you the name of the site with the links -

                      You have just chosen not to read them

                    2. Volokh doesn't put anything in moderation. Reason does. And only if you put more than two links into a single post.

                    3. You are right that I have chosen not to go to a blog of a guy who posts scores of posts each week and guess which posts you might be referring to and then guess which "studies" you might be referring to within those posts, especially given that he just posts indiscriminately to preprints, actual peer-reviewed studies, and random essays and editorials.

        2. Does it really "slows and reduces the rate of infections/hospitalizations/deaths"? We've had just as many infections and deaths this year as last year and half the country is vaccinated. Surely if the damned thing worked even a little the number of infections and deaths would have gone down a little but no, we've got more deaths this year than last year. That's a great vaccine. Keep coping as you take booster after booster after booster for increasingly mild COVID variants that the vaccine has no effect on.

          1. The rate and death have gone down this year compared to last.

            https://www.nytimes.com/interactive/2021/us/covid-cases.html

            1. Sarcastr0
              December.18.2021 at 6:27 am
              Flag Comment Mute User
              The rate and death have gone down this year compared to last.

              https://www.nytimes.com/interactive/2021/us/covid-cases.html

              That is the typical cycle of the 3rd wave of every pandemic . In fact the duration and volume of all 3 covid waves and remarkably similar to the 1918 spanish flu.

              The NYT gives a very incomplete picture.

              1. OK, but that doesn't mean Matt Ross wasn't making things up.

                1. Both of you were making stuff up and/or grossly misrepresenting the facts.

                  The better apples to apples comparison/measurement of the decline in cases/deaths is with other pandemics. The first two waves of Covid and the 1918 spanish flu is remarkably similar (in spite of the massive increase in mitigation protocols) The third wave of covid is only slightly lower than the third wave of the 1918 spanish flu. If the vaccines were as effective as the NYT claims in the article, then the death rates would be substanially less than they currently are.

                  It should be also noted that the vaccines are reducing the severity of cases, with the exception of the 65+ bucket. See Healthy skeptics dot com for the numerous studies he has cited.

                  1. As I said, I like historical analogies, but you're trying to use that now to be predictive. That's dangerous narrativism, and certainly unscientific.

            2. Matt might also wish to consider whether the rates of infection, death, etc. are the same in areas with higher or lower rates of vaccination.

              1. wolfefan
                December.18.2021 at 9:53 am
                Flag Comment Mute User
                "Matt might also wish to consider whether the rates of infection, death, etc. are the same in areas with higher or lower rates of vaccination."

                Good point -

                As of Nov 15th, the death rate by age groups was all within a narrow range across almost all states - irespective of the mitigation protocols, whether is was florida with virtually no enforcement of mitigation protocols or heavy compliance with mitigation such as NY, CA , MN or Colorado.
                The death rate for the 65+age group, the death rate range between 1150 and 1300 per 100k, which is a very narrow range. As would be expected, the various regions all regressed to the mean.

        3. Dear santa,
          Thank you for the compassionate response even if it was ironic.

          1. Thanks. But no real irony...I genuinely feel bad for anti-science idiots. I don't want anyone to die or get really sick unnecessarily. And I *really* don't want the friends or household member or relatives of a vaccine refusnik to get sick or to die, due to ignorance or stupidity.hyg

            The main reason I now hate Donald Trump is not that he botched the Covid response and killed 500,000 or 600,000 or 700,000 people. It's that he helped politicize Covid. His followers are (to some extent) gullible and useful idiots, and will believe anything Trump says. Just imaging if Trump had come out full-force for vaccines, and had given a message like, "Hey, all my supporters. I'm gonna get the vaccine just as soon as it's available. Anyone who does not is no friend of mine, and anyone who does not is a moron and a loser. Till the vaccine comes out; wear a fucking mask, for God's sake!!!"

            How many hundreds of thousands of lives would have been saved? Just imagine how many lives would have been saved if Trump did Not say the above, but merely announced and publicized when he did get the vaccine, rather than deliberately hiding this news from his supporters till well after the election. Would that have saved another 10,000 people? More???

            I can deal with his rapes and sexual assaults. With his decades of racism. With his pathological lying. But he's the biggest mass killer of Americans since, at least, the Civil War. (And to quote from "The Godfather"...) "...And this, I do not forgive."

            1. Santamonica comment - "The main reason I now hate Donald Trump is not that he botched the Covid response and killed 500,000 or 600,000 or 700,000 people. It's that he helped politicize Covid. His followers are (to some extent) gullible and useful idiots, and will believe anything Trump says. Just imaging if Trump had come out full-force for vaccines, and had given a message like, "Hey, all my supporters. I'm gonna get the vaccine just as soon as it's available. Anyone who does not is no friend of mine, and anyone who does not is a moron and a loser. Till the vaccine comes out; wear a fucking mask, for God's sake!!!""

              Santmonica - has a serious case of alternate universe facts.

              A ) trump didnt kill anyone, the virus did.
              B) the virus emerged from china, most likely via the gain of function research partly funded via fauci's FU.
              C) the number of covid deaths during the trump adminstration was approx 408k, during the biden administration the number of covid deaths is approx 410k. I personally blame neither, especially since the president have virtually zero power to control mother nature. but again some people blame every thing on politics.
              D) Trump initiated funding for a rapid development of the vaccines
              E) there were virtually zero republicans that fought against the development of the vaccines.
              F) significant number of democratic party members actively stated that they would not take any vaccine developed during the trump administration, including Harris.

        4. Why is it you vaccine hysterics assume that everyone unvaxxed who gets COVID will automatically die? What's the survival rate again? 99.8 percent, and that was before the ineffective vaccine?

    2. You are correct that the vaccine doesn't stop the spread of COVID. What it does do is drastically reduce the spread and also the severity for those infected.

      Where missing from news coverage is 99% of those dying now are unvaccinated. Those who are vaccinated aren't much less likely to die. Mind you, not being overweight is also a great way to reduce your chance of dieing and that's also missing from coverage.

      1. 99%? Last numbers I saw were in the 60% range. FWIW the data out of France showed those infected either vaxed or unvaxed spread the virus to housemates at nearly the same rate.

      2. It drastically reduces the spread? In what world are you living?

        Half the country has taken the damned thing and we've had more cases and deaths this year than last year. It doesn't work, stop deluding yourself. And no 99% of those dying aren't the unvaccinated, look at the numbers coming out of England, Iceland or Israel its still killing vaccinated people. You're full of shit.

      3. BillyG
        December.17.2021 at 10:14 pm
        Flag Comment Mute User

        Where missing from news coverage is 99% of those dying now are unvaccinated. Those who are vaccinated aren't much less likely to die. Mind you, not being overweight is also a great way to reduce your chance of dieing and that's also missing from coverage.

        That 99% of those dying are unvaxed is not true.

        In most states, the % of vaxed deaths from covid range from 35% to 50% since august which is the point in time when the vaccines effectiveness begins to drop off sharply.

        1. ...but more have died this year (quite a few more) than last year when we both had no vaccine nor any real clue how to treat it in the first place.

          Any ideas why?

          1. damikesc
            December.18.2021 at 10:26 am
            Flag Comment Mute User
            ...but more have died this year (quite a few more) than last year when we both had no vaccine nor any real clue how to treat it in the first place.

            Any ideas why?"

            Because that is the typical trajectory of any pandemic.
            Note that all three waves of the covid pandemic are remarkably similar to the 1918 spanish flu in duration, volume (per capita). Similar wave patterns occurred in the 1957 flu and the 1968 flu albeit with smaller volumes though similar trajectory. "

      4. "What it does do is drastically reduce the spread and also the severity for those infected."
        No one knows that with respect to omicron. The more recent statistics fro South Africa do suggest that it tends to produce milder infections. It is certainly far more immune evasive.

        Finally there are many countries, which like Italy are seeing a strong rebound in infections despite a vax level of 77% of the total population. Still the case fatality rate has dropped back to well under 1%.

    3. The dissent covers that:

      "The government’s own data show that unvaccinated workers between the ages of 18 and 29 bear a risk roughly equivalent to vaccinated persons between 50 and 64."

      Its a BAD majority opinion.

    4. It’s not stopping the spread. It is only stopping the resulting death.

      90% of deaths are unvaccinated while only 40% of people are unvaccinated.

      Math is hard.

  5. The dissent's argument that the danger isn't unique to the workplace strikes me as odd. Gravity is ubiquitous, but that's not a justification for taking a Lochner view of random falling bricks on a construction site.

    On the other hand, this proposition is problematic (in a few ways): "The ETS is not a novel expansion of OSHA’s
    power; it is an existing application of authority to a novel and dangerous worldwide pandemic."

    The winning argument here isn't family-resemblance to past uses of rulemaking authority; the winning argument is that in an unprecedented (and shortly to become even less precedented) situation, this is the glass that Congress anticipated being broken in case of an emergency of this type. The Executive governs in times of emergency, not just because of time constraints, but also because it's a really bad idea to put 536 people in charge during any given emergency. The 536 are free to bark in the night, should the thief appear.

    Mr. D.

    1. Gravity is ubiquitous and there are gravity-related hazards in the workplace that OSHA may regulate, sure. But I'm less sure that OSHA then has the power to take actions to regulate the mass of all workers to reduce the pull of gravity on them. (Framing it as "we're technically not regulating the workers; we're just telling their employer that they'll be fined six figures if they willfully employ someone who is too massive" doesn't help.)

      And I'm not convinced about your last point. This is something which is controversial and directly affects millions of Americans. If we're going to do this, it should fall to our elected officials to say so. Delegation is fine for details; Congress shouldn't have to legislate the position of every stop sign in Yellowstone. But this isn't a detail. It's a "major question".

      "The executive governs in time of emergency" is a bit dangerous when you realize that not only have we been in a constant state of emergency on *this* issue for about 21 months now (which is bad enough), but we've been in a state of emergency on *something* continuously for about 86 out of the past 87 years. (Congress did once, in the 1970s, end all existing emergencies, which is the only reason it's not 87 out of 87.) Wikipedia says we're currently in 40 different officially declared national emergencies.

      1. But I'm less sure that OSHA then has the power to take actions to regulate the mass of all workers to reduce the pull of gravity on them.

        Why not? Isn't that what many safety regulations do? "Employer must require the following safety precautions when operating X piece of machinery." The precautions reduce the risk of harm in the event of an accident, or reduce the risk of an accident. Seems to me totally within OSHA jurisdiction.

        You guys are looking for artificial limits on OSHA's power to regulate the workplace because you don't like this regulation. But this is straight up OSHA's alley. (And note, I call them as I see them- I don't think the conclusion of the courts that the CDC had no power to impose an eviction moratorium was unreasonable. There you really were stretching things, because the CDC's ambit is medical interventions. But here? Straight ahead safety regulation- getting COVID endangers fellow workers. So the government can require precautions that reduce the risk.)

        1. "Isn't that what many safety regulations do?"

          No, not at all.

          "You guys are looking for artificial limits on OSHA's power to regulate the workplace because you don't like this regulation. "

          No we are looking at the law and see OSHA has no power to regulate on this matter, especially not an ETS.

          "But this is straight up OSHA's alley. "

          Not only is not up their alley, its not even in the same state as their alley.

        2. The problem with arguing against the mandate is that, of course the vaccinations will reduce a clear workplace risk. We can argue about whether it's worth it and various other things, but it certainly will do that.

          I think my real issue here is the clear pretext. Biden ordered them to produce this mandate because he wants more people vaccinated, not because he cares about workplace safety in particular. It would be like regulating the cholesterol of workers under the pretext of reducing heart attacks at work because he wants to reduce heart attacks in the population.

          Another issue is the way that, unlike most other regulations, it affects the worker continuously for life. You can get drunk again later after you get sober for work. You can't get unvaccinated. (Yes, you can get tested weekly instead - IF your employer decides they want the hassle of keeping test records for all employees, with the threat of a fine if they can't immediately produce them to OSHA on demand. And of course you're paying for those tests yourself. And you're sticking something up your nose every week, which is not exactly unintrusive.)

          And I still think major questions should be decided by an elected legislature, not by bureaucrats (or the President alone.) Seeing as how this affects practically all workers and implicates bodily integrity, it's certainly a major question.

          1. "It would be like regulating the cholesterol of workers under the pretext of reducing heart attacks at work because he wants to reduce heart attacks in the population."

            No, it would not be like that, because high cholesterol isn't contagious.

            1. The pretext part is like that, though.

              It's hard to come up with a perfect analogy for a unique situation, where vaccines reduce but don't eliminate the possibility of getting it at work and/or spreading it at work.

          2. None of those things (pretext, permanence, major questions) are in the statute though. They are political arguments. Call your congressman and try to get the statute amended.

    2. Its not odd, its dead on balls accurate.

      OSHA has no power over vaccine status.

      1. You don't get to make things up because you wanna.

        You have an issue with the opinion, quote the opinion and make an argument. Don't just assert bullshit you wish is true.

        1. I'll give you this much: Your interpretation of OSHA's reach is consistent with your interpretation of the interstate commerce clause's reach: Any means necessary to achieve 100% effectiveness at anything that's even vaguely related to what you're actually authorized to do is fair game.

          1. Oh, I'm not sure about OSHA's enabling statute - that's not my area of law. But I know empty knee-jerking when I see it.

            As for your windmill tilting about the Commerce Clause, I share my interpretation with the Supreme Court. And indeed the entire US government and vast majority of the population for the entire modern era.

            Of course, it helps that the interpretation is not what you say it is - it is a strawman to argue that Necessary and Proper is unlimited. Lopez and Morrison put the lie to that.

            1. Lopez was a "magic words" decision: The Court struck it down because Congress didn't bother including an interstate commerce "finding".

              1. No, Lopez is cited a lot by lower courts in limiting laws due to a lack of sufficient nexus to interstate commerce.

          2. OSHA can regulate any issue of workplace safety. This isn't the eviction moratorium coming from the CDC- this is right down the center of OSHA's mandate.

    3. OSHA can mandate wearing hard hats at work. They cannot do so once you leave work.

      1. Dam,
        But you DO get the difference, yes? If Covid were not contagious, then I totally would agree that OSHA can't regulate what you're doing when you're not at work. But I do hope that you see the difference. Even if you are not persuaded by the difference, it would mean a lot if people arguing on your side could at least admit, "There is a nationwide (and world-wide) pandemic, where millions have died and where it's very contagious." And if you want to add to that, "...And although the vaccines have helped a lot, and although wearing masks has helped a lot; on balance, I don't support mask mandates or vaccine mandates because ___."

        It's the refusal of some/many people to acknowledge that this is a literal once-in-a-century event that, IMO, hurts their credibility.

        It reminds me of when people who favor strong gun regulation refuse to admit that gun ownership prevents some crimes. Those people lose all credibility with me. They could argue, "Yes, some crimes are prevented. But, on balance, guns are bad because ___." That argument, I can respect. But an argument of, "No. Guns are bad, and you can't show me a single positive relating to gun ownership." is just cringeworthy.

        Okay, I've moved past digression and am on the road to ranting. Time to take a pause for the cause. 🙂

  6. It appears the majority opinion may have provided the supreme court an opening to dial back or overturn Chevron. There seems to have been an inclination to do so in the past by each of the six justices. Here's hoping this lower court ruling backfires in the biggest way possible.

    1. Some Americans may survive the pandemic consequent to this ruling.

      Clingers are disappointed.

      Bitterly, of course.

      Carry on, clingers. So far and so long as your betters permit.

  7. What does "dissolve" mean in this context? That's a new one to me.

    1. The Fifth Circuit had entered an order enjoining enforcement of the regulation, before it lost the case. So the Sixth Circuit has to vacate that order- "dissolve" is another word for that.

      1. Thank you. Is there a reason the 6th circuit used dissolve rather than vacate?

        1. Probably because that's how the motion was styled.

  8. "Did Congress authorize OSHA to force American workers to receive a vaccine?"

    Everyone, even those without a law degree, knows the answer to that question, and no amount of judicial sophistry will change that.

    1. OSHA is not forcing workers to do anything.

      The word force is being flung about with reckless abandon by the pro-virus crowd.

      1. "OSHA is not forcing workers to do anything"

        They literally are. Sure they are making token offerings so that don't have to do it, just so dumb people can say "they aren't forcing them to do anything!" But the burden of not doing it is high.

        The word force is used exactly as it should be.

        1. That word literally. It doesn't mean what you think it means.

          Choosing among economic alternatives is not force. Force is being held down and being stuck with the needle (which I can agree would violate the substantive due process right to bodily integrity).

          1. It's force if the only reason you're choosing among those particular economic alternatives is that if you try to do anything else force will be applied.

            Basically everything the government does involves force, because if there weren't force lurking in the background, people would be free to just ignore the government.

            1. Not true. We're taking about a mandate on employers, punishable by a fine. An employee is free to accept or reject the condition of employment. OSHA doesn't force an employee to do anything, no matter how much the pro-virus crowd kvetches to the contrary.

              1. n_g,
                You'd be a lot more credible if you kept away from the value-laden epithets such as "pro-virus crowd." They add nothing to your substantive arguments.
                Now answer, why doesn't the <100 employee exception undercut the OSHA's argument?

                1. The wisdom of each of the various provisions of the ETS was not before the Court of Appeals; the authority to enact it was. If the order is supported by substantial evidence in the record as a whole, it is valid. The Sixth Circuit observed that:

                  OSHA limited the ETS to coverage of 100 or more employees, based on four reasons. First, as a practical matter, those employers have the administrative and managerial capacity to
                  be able to promptly implement and meet the standard. Id. at 61,511. Second, the coverage threshold is sufficiently expansive to ensure protection to meaningfully curb transmission rates to
                  offset the impact of the virus. Id. Third, the ETS “will reach the largest facilities, where the most deadly outbreaks of COVID-19 can occur.” Id. And finally, the standard is consistent with size thresholds established in analogous congressional and agency decisions, including standards promulgated by the Equal Employment Opportunity Commission under Title VII of the Civil
                  Rights Act of 1964, requirements under the Affordable Care Act (in allowing greater flexibility with its requirements for employers with 100 or fewer employees), and requirements under the
                  Family Medical Leave Act (exempting compliance for employers with fewer than 50 employees given decreased administrative capacity and inability to easily accommodate such employee
                  absences). Id. at 61,513.

              2. NG, please shut up about "punishable by a fine".

                The fine carries an agreed order that you will correct your violation in a certain period of time. Not complying with the order can take you to civil or criminal court.

                This isn't like the Obamacare mandate where it's just another tax. If you don't do it, you get forced, to the point of actual shutdown of your business and imprisonment

      2. Telling someone to do something with the threat of consequences if they don't do it is literally the definition of "forcing".

        1. Not so. Have you ever litigated a case where force was at issue?

      3. OSHA is not "forcing" workers to do anything -- I am using that term in it's technical sense, not in it's ordinary sense that people commonly use when they are making comments on discussion threads.

        I seem to remember a similar line of argument not that long ago about "Critical Race Theory". I imagine this time will go over about as well as that did.

        1. Never figured out how heavy usage of sophistry can lead to the consent of the governed.

  9. Majority opinion argument is basically "BECAUSE REASONS SHUT UP".

    Dissent opinion is full of well written, well argued, logical reasons why this is not correct.

    1. Objective, substantive analysis by a person who definitely read and understood the arguments.

      1. In my 12:01 a.m. comment, I specifically asked Mr. Henry the 2nd if he has read Judge Stranch´s opinion. He has conspicuously declined to answer.

        1. Oh gosh, whatever will he do? He ignored 'not guilty'...Oh noes.

          1. He came in hot, and then ignored everyone.

            That's his right, but we can also judge him as kind of an emotionalist idiot.

  10. Here's what I don't get - from a general legal perspective. Maybe someone can help. If one is "injured" on the job by getting Covid it is NOT a workers comp injury. Does OSHA normally make/enforce rules that involve practices that are specifically not covered by by workers comp?

    1. I don't believe OSHA's enabling statute limits it to preventing worker's comp eligible injuries.

      1. Are there any other worker safety issues that OSHA regulates where the resulting injury would not be covered by insurance? It does seem strange that the law would make the employer responsible at the same time that it specifically excludes a workers coverage from injury. The workers comp insurance policies currently (in my state) do not cover the employer if they mandate the vaccine and there is a resulting complication.

        1. Probably. But it doesn't matter. Heck, different state WC schemes probably define workplace injuries differently. WC was designed to deal with the fellow servant rule in negligence law, not to directly regulate safety. Different purpose, different scope.

    2. It's Occupational Safety AND Health, as the Sixth Circuit opinion observes.

      1. It's Occupational (Safety and Health), not Occupational Safety (and Health).

        1. Ok, it's It's Occupational (Safety AND Health). That make you feel better?

    3. If one is "injured" on the job by getting Covid it is NOT a workers comp injury.

      I don't know why you think that. See, for one such counterexample: http://www.wcb.ny.gov/content/main/TheBoard/covid-19-workers-compensation-q-a-june-2020.pdf

      Does OSHA normally make/enforce rules that involve practices that are specifically not covered by by workers comp?

      Worker's comp is a question of state law. OSHA is federal law.

  11. The problem with the mandate is that there is no scientific support for the false claim that having been vaccinated protects anybody other than the person who was vaccinated. The Lancet study shows that vaccinated people are just as likely to get infected with COVID, carry the same level of viral loads, and spread COVID as the unvaccinated. This has also been proven out by the high current case rate seen in some countries with very high vaccination rates.

    If vaccines prevented the spread of COVID, the more people that are vaccinated, the fewer the number of cases. Since this clearly isn't what's happening, any reasonable person would be forced to conclude that the unvaccinated pose zero greater threat to others than the vaccinated do.

    1. "The Lancet study" which you don't link to?

    2. Tom,
      when you quote a study, include the citation.
      There is no Lancet study. There are many studies that have been published in The Lancet.

    3. " The Lancet study shows that vaccinated people are just as likely to get infected with COVID, carry the same level of viral loads, and spread COVID as the unvaccinated. "

      That's the type of assertion one expects from a source whose science education topped out at 11th grade.

  12. I am not an anti-vaxxer. My complaint is the federal government is the wrong place for this. Do not give Cessar, or Adolph, or the jackasses in Venezuela or Turkey, or Chancellor "Vellorum" emergency powers, then the issue of them never giving them up never comes to be.

    Recommend to states and let them handle it avoids tbis concentration.

  13. What really should be said more often is that this is the first time OSHA ever enacted any regulation (let alone an ETS) to require employees to get any sort of medical treatment. This unprecedented nature should be sufficient to strike down the ETS, even if it could pass muster as an ordinary regulation with a notice-and-comment period.

    Few for example would challenge OSHA's hard hat mandate for construction workers, both on the issues of whether it is proper public policy and whether it is within OSHA's authority. It is a far different thing if OSHA required construction workers (let alone anyone else) to undergo a surgical procedure to replace the tops of their skulls with a stainless steel prosthetic cranium.

    1. "What really should be said more often is that this is the first time OSHA ever enacted any regulation (let alone an ETS) to require employees to get any sort of medical treatment. This unprecedented nature should be sufficient to strike down the ETS"

      That is not how the law works.

      It's amazing how conservatives make up a bunch of rules to ignore text as soon as text allows something they dislike.

      1. So it is your assertion that, via ETS, that OSHA could require construction workers to undergo a surgical operation to replace the tops of their skulls with stainless steel or some other substance more resistant than bone?

    2. " What really should be said more often is that this is the first time OSHA ever enacted any regulation (let alone an ETS) to require employees to get any sort of medical treatment. This unprecedented nature should be sufficient to strike down the ETS, even if it could pass muster as an ordinary regulation with a notice-and-comment period. "

      Is that
      (1) a Liberty, Regent, or South Texas College Of Law Houston law degree talking;
      (2) something you think you remember from a discount homeschooling outline; or
      (3) what you heard at Fox, NewsMax, Stormfront, or One America News recently?

  14. "Despite access to vaccines and better testing, however, the virus rages on, mutating into different variants, and posing new risks. Recognizing that the "old normal" is not going to return, employers and employees have sought new models for a workplace that will protect the safety and health of employees who earn their living there."
    So, hearsay and, assuming 'facts', not in evidence; just another day in our America. This opinion, is an idiotic mish-mash of personal feelings.

    1. "Despite access to vaccines and better testing, however, the virus rages on . . ." Which makes me laugh because she just basically gave the reason why the mandate is bullshit. Force a vaccine that doesn't work? Huh?

      1. Exactly. Cornell went online because they have 900 cases per week with fully vaxxed students; many with the booster. Shut Up! They explained...

        1. It is astonishing that those who mandate vaccines behave as if vaccines do not work.

        2. Get it correct, Jeff.
          Cornell had only 900 cases in students,
          not 900 cases per week.

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