On Nov. 4, the Biden administration issued two safety rules covering more than 100 million employees. One came out of the Occupational Safety and Health Administration (OSHA), which — relying on the federal law charging the agency with protecting employees’ health and safety and on substantial evidence of widespread workplace breakouts — issued an emergency order giving employers of 100 or more people two choices: Either have their employees fully vaccinated, or make sure they are tested weekly and wear masks at work.

The other rule, issued by the Centers for Medicare & Medicaid Services (CMS), requires health-care workers employed at facilities participating in Medicare or Medicaid to be fully vaccinated.

A combination of business interests, labor unions and Republican-led states sued to prevent these measures from taking effect. They argued that the mandates violate various constitutional limits on federal power and abridge religious rights as well.

On Dec. 17, a divided three-judge panel of the Sixth Circuit Court of Appeals upheld the 100-employee rule based on OSHA’s statutory authority “to assure safe and healthful working conditions for the nation’s work force.” The majority concluded that the mounting number of deaths and hospitalizations, and the heightened risk of exposure, have created “grave danger in the workplace.”

On Jan. 7, the Supreme Court devoted more than three hours to hearing the two challenges. In the OSHA case, National Federation of Independent Business v. Department of Labor, one of the objections is that OSHA’s “economy-wide mandate” will cause workers to quit in droves. After noting that “catching COVID keeps people out of the workplace,” Justice Sotomayor asked why, if OSHA can require masks in workplaces where machines give off sparks, can’t it do the same when the “sparks” come from other human beings.

Chief Justice Roberts drew the distinction that ultimately carried the day. It’s one thing, he said, for OSHA to deal with risks that are unique to the workplace; it’s another to regulate those not so confined. Unlike a hard-hat requirement at a construction site, or masks around workplace machinery, this mandate “is not a workplace issue,” he said, “it’s an out-in-the-world issue.”

I went looking for where the OSHA statute limits the agency’s protection power to risks that exist only at work. I couldn’t find it. Even so, according to Justice Gorsuch (the only mask-less justice in the courtroom), it’s “traditional.” Justice Alito thinks that the Biden administration is “trying to squeeze an elephant into a mouse hole.”

Thursday, the six conservative justices found what I could not. In an unsigned opinion, they decided that OSHA ‘s authority is limited to “occupational dangers.” So much for OSHA’s finding that the workplace rule would prevent 250,000 hospitalizations.

In their dissent, the three liberal justices — Breyer, Kagan and Sotomayor — wrote that wisdom often takes the form of deferring to those who know something about the matter at hand, in this case the department of government whose job is to protect the public in a public health emergency. “Today,” they wrote, “we are not wise.”

When the Jan. 7 hearing turned to Biden v. Missouri, the case dealing with Medicare-Medicaid providers, the tide seemed to turn in the administration’s favor. The arguments were similar — that the CMS had pulled a “bureaucratic power move” and that health-care workers would quit rather than get vaccinated. Kagan had a simple answer: “The one thing you can’t do is kill your patients.” She might have added the physician’s oath that medical students learn early on: Primum non nocere. First do no harm.

On Jan. 13, the court upheld the CMS requirement on the grounds that Congress had authorized the secretary of Health and Human Services to impose conditions on the receipt of Medicare and Medicaid funds. The government prevailed only because two justices, Chief Justice Roberts and Justice Kavanaugh, switched sides. Dissenting Justices Thomas, Alito, Gorsuch and Barrett complained that the majority was forcing health-care workers who want to keep their jobs to undergo “an irreversible medical treatment.” Until now, I had not heard anyone call vaccination “treatment,” but that is the word Alito used.

How has it come to pass, one might ask, that a national effort to prevent illness and death has become a political question? What’s needed here is at least a dash of common sense. OSHA was not requiring vaccination; workers could choose weekly testing and wearing a mask instead. The fact that Congress didn’t mention vaccines or pandemics when it created OSHA 52 years ago is not much different from saying that the Civil Rights Act of 1964, which prohibits discrimination by employers “because of sex,” didn’t refer to gay and transgender workers. Yet just a year ago, in an opinion by none other than Gorsuch, the court ruled that such employees are protected.

One problem with this legal debate is that it casts judges in the role of making public health decisions. Courts have no epidemiology expertise, and they are not politically accountable. Meanwhile, the number of COVID cases in the United States is over 62 million, the number of deaths is fast approaching 1 million, and the infection maps no longer have different colors. Every state is red and, thanks to the court’s OSHA decision, likely to get redder.

Attorney Joseph D. Steinfield of Keene can be reached at joe@joesteinfield.com

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