This is a sequel to my post last week, My Covid Perceived Injurious Experiences (PIE). It describes more PIEs and critiques the Supreme Court’s ghastly decision blocking implementation of the OSHA regulation protecting employees of large employers.
I wanted to publish my post last week to express perspectives that a lot of people share and to help validate their justified anger and frustration. Clearly, many people feel the same way as I described.
I want to thank everyone who sent notes wishing me well after my mild bout of covid. My wife, adult kids, and I don’t have covid symptoms any more, and hopefully we won’t get them back.
I assume that some readers have gotten much more serious cases than I did. Although vaccinations, masking, and minimizing close indoor contact with others reduce our risks, we all are at risk. I wish you all well as you encounter this ongoing perilous situation.
In the past week, I learned more about covid PIEs. A NYT essay by doctors treating transplant recipients described the heightened risks of “millions of Americans with weakened immune systems because of treatment for cancer, autoimmune disorders, transplants and many other conditions.” They cited research showing that “transplant recipients who were vaccinated with two doses of mRNA vaccines made by Moderna and Pfizer had an 82-fold higher risk of infection and 485-fold higher risk of hospitalization or dying compared with the vaccinated general population overall.” They point out that immunocompromised people “have jobs, families and lives to live. They cannot be expected to hide in the basement until the Omicron variant disappears.”
Here’s a heartbreaking account of a cancer survivor who is immunocompromised and is at heightened risk because of his encounters with people who fail to take sensible precautions because of covid fatigue.
The pandemic also creates serious PIEs for kids and their families. One colleague, who is the parent of a child too young to be vaccinated, fears that “her covid-free days are numbered.” Obviously, her unvaccinated child is at risk too.
Another colleague described the very common dilemma about whether to send his kids to school or keep them home. Going to school puts kids and teachers at risk of getting covid, which they can take home to their families. The risks have led some teachers and students to essentially “go on strike,” protesting requirements for in-person classes with inadequate covid protocols. OTOH, home schooling can be very stressful and problematic for kids and parents.
A friend who got covid told me that she is isolating in her house to protect her husband and kids. Her daughters report that their dog misses her and looks sad. If you are unmoved by pets’ distress, you probably don’t have pets in your family and/or a heart.
Obviously, this is a very small inventory of harms caused by covid and people’s responses to it.
The Supreme Court Majority’s Cynical Covid Decision
On January 13, the conservative Supreme Court majority blocked implementation of OSHA’s regulation requiring employees of large employers to be vaccinated or regularly get tested and wear masks in the workplace. The majority’s bizarre decision was based on the fact that the benefits of vaccination would not be limited to workplaces and thus supposedly exceeded OSHA’s statutory authority. People concerned about others’ wellbeing would view the benefits extending beyond the workplace as an added bonus. By contrast, the majority saw it as a reason to prevent the federal government from protecting our community from a pandemic that is ravaging our population, economy, and society.
There are many problems with the majority’s rationale. Conservatives supposedly seek to simply apply statutory text, but this statute doesn’t limit OSHA from providing benefits outside the workplace, which it has done in the past. The dissent points out that OSHA has “issued, and applied to nearly all workplaces, rules combating risks of fire, faulty electrical installations, and inadequate emergency exits – even though the dangers prevented by those rules arise not only in workplaces but in many physical facilities.”
Although the majority opinion notes that the regulation permits employees to get tested and wear masks instead of getting vaccinated, it repeatedly refers to it as a “vaccine mandate,” whereas most non-partisan accounts describe it as a “vaccine-or-test mandate.”
What if the majority had focused on employees’ testing and masking option in the regulation? Suppose the regulation didn’t even mention vaccination. Clearly, that should satisfy the majority’s stated standard because it would protect employees’ health in their workplaces. Testing enables employers to bar contagious employees from infecting other employees in the workplace, and wearing masks in workplaces reduces the risk of spreading the deadly virus to co-workers. This would be especially important for highly vulnerable employees, such as those who are immunocompromised. From this perspective, vaccination is an added, free and attractive option for employees.
Preposterous Denial of Imposing the Majority’s Policy Preferences
The majority states, “The equities do not justify withholding interim relief. We are told by the States and the employers that OSHA’s mandate will force them to incur billions of dollars in unrecoverable compliance costs and will cause hundreds of thousands of employees to leave their jobs. For its part, the Federal Government says that the mandate will save over 6,500 lives and prevent hundreds of thousands of hospitalizations. It is not our role to weigh such tradeoffs.”
In fact, the majority does weigh the tradeoffs, pretending that it is merely protecting Congressional authority. The majority complains that the regulation would impose a “significant encroachment into the lives – and health – of a vast number of employees” but it displays precisely zero real concern about the “encroachment” into the lives of employees who will get covid and suffer preventable serious illness and death.
The dissent writes, “The agency showed, in meticulous detail, that close contact between infected and uninfected individuals spreads the disease; that ‘[t]he science of transmission does not vary by industry or by type of workplace’; that testing, mask wearing, and vaccination are highly effective – indeed, essential – tools for reducing the risk of transmission, hospitalization, and death … . … In short, OSHA showed that no lesser policy would prevent as much death and injury from COVID–19 as the Standard would.”
As far as the majority is concerned, the “encroachment” of having employees get vaccinated or tested obviously is far greater than the “encroachment” of employees getting seriously ill, hospitalized, or dying because they contracted covid in their workplaces.
The dissent notes that one of the requirements for receiving interlocutory relief while cases are on appeal is that denial of the relief would cause “irreparable harm.” In this case, some businesses and state governments asked the Court to stay the OSHA regulation while the case is pending. The majority, which granted the stay, apparently believes that tens of thousands of people’s preventable deaths and serious illnesses would not be irreparable harm but businesses’ unrecovered expenses would be irreparable.
Cold-Blooded Power Grab Masked as Judicial Restraint
The majority writes, “although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here.”
Since Congress previously authorized OSHA to issue emergency temporary regulations, statutory authority already exists and the Court should uphold the statute without requiring Congress to re-enact it specifically for this crisis. The statute reads, “The Secretary shall provide, without regard to the requirements of chapter 5 of title 5, for an emergency temporary standard to take immediate effect upon publication in the Federal Register if he determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.” What could more clearly authorize OSHA’s rule to protect workers from the covid pandemic?
Rather than protecting Congressional authority as it disingenuously claims, the majority “usurps” it, as the dissent points out. “Acting outside of its competence and without legal basis, the Court displaces the judgments of the Government officials given the responsibility to respond to workplace health emergencies.”
Professor Kimberly Wehle elaborates this point in an op-ed, “The Supreme Court Just Made an Incredible Power Grab:
The ruling striking down Biden’s vaccine mandate threatens decades of statutory authority to let agencies write important regulations. … [T]he biggest loser coming out of these decisions is not the president’s reputation as a problem solver but decades of constitutionally established power-sharing between the legislative and executive branches. And the winner, if that’s the right term, is the Supreme Court itself, which has executed an unprecedented power grab and masked it as an act of judicial restraint. … The conservatives’ major questions doctrine puts that power solidly in the judicial branch, handing it ultimately to Supreme Court justices who can now decide which laws they like and don’t like with virtually no oversight or constraints. This amounts to a constitutional power-grab. But not by agencies. It’s by the Supreme Court itself.
NYT columnist Linda Greenhouse argues that in this decision, the majority “functionally overturns” the Chevron doctrine, which was adopted unanimously in 1984 and holds that “judges should defer to an administrative agency’s reasonable interpretation of an ambiguous statute.” In this covid case, the majority “giv[es] birth to a new doctrine of administrative agency disempowerment.”
False and Irrelevant Claims of Lack of Causal Relationship or Precedent
The majority argues that “OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind addressing a threat that is untethered, in any causal sense, from the workplace. This ‘lack of historical precedent,’ coupled with the breadth of authority that the Secretary now claims, is a ‘telling indication’ that the mandate extends beyond the agency’s legitimate reach.”
This too is a faulty argument. OSHA cites evidence showing that employees’ close contact in the workplace with unvaccinated co-workers increases their risk of getting covid. The dissent notes that in workplaces, “more than any others, individuals have little control, and therefore little capacity to mitigate risk. … Since the disease’s onset, most Americans have seen their workplaces transformed.” The dissent also cites prior OSHA regulations promoting vaccinations and requiring face coverings.
No exact precedent is needed if a statute describes the facts in a situation, as in this case. Since OSHA was established during the Nixon Administration, it hasn’t issued a regulation as broad as this because we haven’t experienced a global pandemic killing more than 1000 Americans day after day after day. So this is an unprecedented situation. If anything, this demands more, not less, assertive government action to fulfill its statutory obligation to protect workers.
The Majority’s Blood on its Hands
The Supreme Court majority will have blood on its hands as a result of its heartless and contrived decision. We will never know exactly who will die or be sickened due to its decision because some infections would happen even if the Court declined to block the regulation. But we can be confident that its decision will worsen this deadly scourge for some time to come.
As keen legal analyst (and talk show host) Jimmy Kimmel observed, “The conservative majority ruled that Biden’s mandate went too far, and our individual right to get Covid from the worst person at work has been preserved.”