The SCOTUS OSHA ETS Ruling & Effect on Workplace Safety & Health Professionals
We can look at many aspects of the Supreme Court decision on the OSHA COVID-19 ETS. We can certainly take a granular look at the various considerations for and against the ETS and assess how each one may impact future OSHA challenges. We can also look at the overall impact of how OSHA can/cannot regulate certain aspects of society simply because people are in the workplace setting. We can look at what we, as a society are willing to tolerate when it comes to government regulation over our lives.
Whichever way you look at this, one thing is clear; we, as safety professionals, must remain PROFESSIONAL and rise above the fray - avoiding petty bickering, name-calling, and the like. I have been concerned with the language used by many safety professionals who believe OSHA did have the statutory authority to oversee such matters in the workplace.
I have seen many on the other side of this argument also engage in political rhetoric, rather than making a case. While almost all believe COVID-19 is a critical issue, but also that OSHA was not the appropriate agency to address mandatory masking, testing, or vaccination of millions of workers across all general industries. In the interest of full disclosure, this is the position I hold. However, I respect that others may believe differently. This is why the ETS went through this legal review process.
I found many aspects of the SCOTUS opinions interesting on both sides. However, one thing that jumped off the pages was the consistent tone used by the Justices writing the majority opinion. The question was not about whether OSHA has the statutory authority to oversee workplace safety and health, but rather what limitations are on that statutory authority? That is what gets lost in the conversations.
For the majority opinion, we have a look at the intent Congress had when passing the Occupational Safety and Health Act of 1970 and creating the Occupational Safety and Health Administration.
Specifically, whether that administrative agency may mandate employers require the vaccination or weekly medical testing/masking of 84 million people for an illness not arising out of the workplace, but one that may be present simply because people are in the workplace. Or whether, as 27 States submitted to the Court, that effort belongs to state and local governments across the country and the people's elected representatives in Congress.
As Justice Gorsuch wrote, "The agency claims the power to force 84 million Americans to receive a vaccine or undergo regular testing. By any measure, that is a claim of power to resolve a question of vast national significance. Yet Congress has nowhere clearly assigned so much power to OSHA."
Gorsuch went on to point out that over the two years of the pandemic, "Congress has adopted several major pieces of legislation aimed at combating COVID–19. But Congress has chosen not to afford OSHA—or any federal agency—the authority to issue a vaccine mandate. Indeed, a majority of the Senate even voted to disapprove of OSHA's regulation."
The Court addressed the ETS authority, writing, "29 U. S. C. § 655(c)(1). In that statutory subsection, Congress authorized OSHA to issue "emergency" regulations upon determining that "employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful" and "that such emergency standard[s] [are] necessary to protect employees from such danger[s]." According to the agency, this provision supplies it with "almost unlimited discretion" to mandate new nationwide rules in response to the pandemic so long as those rules are "reasonably related" to workplace safety."
The Court continues, "...OSHA has relied on it (the ETS) to issue only comparatively modest rules addressing dangers uniquely prevalent inside the workplace, like asbestos and rare chemicals." The Court even pointed out that OSHA itself explained to a federal court less than two years ago, the statute (ETS) does "not authorize OSHA to issue sweeping health standards" that affect workers' lives outside the workplace. So we know that even OSHA holds this view of limited powers when it comes to issuing the ETS.
The question that the Court needed to answer was not about responding to the pandemic but who holds power to do so. As Gorsuch wrote, "The answer is clear: Under the law as it stands today, that power rests with the States and Congress, not OSHA."
Gorsuch even explained that this is not to "impugn the intentions behind the mandate. Instead, to enforce the law’s demands when it comes to the question of who may govern the lives of 84 million Americans. Respecting those demands may be trying in times of stress." He also went on to explain, "if the Court were to abide them only in more tranquil conditions, declarations of emergencies would never end, and the liberties our Constitution’s separation of powers seeks to preserve would amount to little."
I won't put too much stock into the dissenting opinions, mainly because at this point, it does not matter - it has been settled. I will, however, use two main points of contrast between the two opinions, which illustrates to me the frame of mind these two sides had when considering this decision.
The Majority opinion:
"This Court is not a public health authority. But it is charged with resolving disputes about which authorities possess the power to make the laws that govern us under the Constitution and the laws of the land."
The Dissenting opinion:
"Who decides how much protection, and of what kind, American workers need from COVID–19? An agency with expertise in workplace health and safety, acting as Congress and the President authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes?"
These two opposing views get me to my main point; the online debate. Yes, that marketplace of small ideas and echo chamber of virtue-signaling platitudes and shaming anyone daring to think independently. You guessed it; I am talking about Twitter.
The quote from the dissenting opinion is a familiar one. I have heard this argument whenever someone dares to question whether cloth facemasks do much to protect you or others from an aerosolized virus. The response is usually something like, "You are NOT a scientist!" followed by a statement about "following THE science." Or, if you ask about the durability of the vaccines against a new variant, you are immediately branded as anti-vax.
Mind you, I have heard these statements from CIH professionals that would never allow you to walk into a lab without your fitted respirator because there MAY be some chemicals present; yet are convinced that the loose-fitting cotton face mask (oftentimes found under your nose) that you occasionally take off to talk to others and eat lunch, will prevent the spread of an aerosolized virus.
Whenever someone responds to an opposing view by asking you to state your credentials on the topic (of which they likely have none as well), it is a pretty good indicator of how the rest of the conversation will unfold. Think about that; imagine arguing to the Supreme Court that they have no business taking up a case about, well anything really because they don't have any knowledge or expertise in the matter? Of course not.
This binary line of thinking is extremely dangerous. It shuts down any rational thought, open debate, and the free exchange of ideas. On one side - if you oppose the ETS, you oppose vaccines, testing, and masking. On the other side - if you support the ETS, then you support totalitarian rule and the ability to govern over every aspect of our lives. This reductionist view misses a lot. Going back to the majority opinion, we clearly see the question is not about the seriousness of the pandemic. It isn't even a question of whether or not people agree or disagree with what was proposed to be mandated (vaccines, or testing and masks). It was simply whether a particular government agency (OSHA) possessed the powers to force employers to do so.
In conclusion, yes; we certainly can hold more than one truth. We are, of course, complex creatures.
- You can believe that OSHA does not have the authority to issue this particular ETS, and also believe that vaccines are beneficial and have made a significant impact on the pandemic.
- You can believe that vaccines have made a significant impact on the pandemic, and also that cotton face masks do little to nothing to stop the spread.
- You can believe that vaccines and cotton face masks made a significant impact on the pandemic early on, but are having very little impact on the Omicron variant.
We need to buck this conventional Twisdom (yeah, I combined Twitter and wisdom - I believe that new word will take off) of reducing everything to their simplest, thus incorrect state. Just because you only have 280 characters, does not mean you also need to reduce your logic as well. We are better than that. Be kind, or at least polite, and hold me to that as well.
I will continue to go deeper into the many issues we face as safety professionals here, inside this community, and welcome you all to join me, no matter your views, to communicate openly.
For me, to spare myself from getting dumber I will return to using Buffer to post to Twitter so that I may avoid diving into the shallow end of the intellectual pool.
