Duel Dictionary definitions feature prominently in legal dispute over OSHA’s vaccine mandate
Briefs submitted to the U.S. Court of Appeals for the 5th Circuit this week suggest that dueling dictionary definitions could feature prominently in the legal dispute over the federal vaccine mandate for private employers. Opponents of the mandate, including the Occupational Safety and Health Administration (OSHA) published Last Friday, argue that it exceeds the agency’s statutory powers. The Justice Department says the mandate clearly falls within the agency’s powers under the Occupational Safety and Health Act. Much of the dispute hinges on the meaning of key phrases in that law, which is why both sides in the 5th Circuit case took a dip in the dictionary, looking for definitions that bolster their arguments.
OSHA’s “Temporary Emergency Standard” (ETS) states that companies with 100 or more employees must require that they be vaccinated against COVID-19 or wear face masks and undergo weekly tests. Last Saturday, in response to a complaint filed by a Louisiana supermarket chain and six employees of a Texan company that manufactures kitchen ventilation systems, the 5th Circuit imposed a temporary suspension on the ETS, which, according to him, raises “serious statutory and constitutional problems”. The court called on the government to “respond to the petitioners’ request for a permanent injunction” and invited the petitioners to respond. The two memories in BST Holdings v OSHA answer an obscure question that is likely to arise repeatedly in the challenges of the vaccine mandate: is the COVID-19 virus an “agent”?
This is important because of the legal requirements for an ETS. OSHA must identify a “serious hazard” to employees “from exposure to substances or agents found to be toxic or physically harmful or new hazards.” It must also show that the emergency standard is “necessary to protect employees from such danger”.
The complainants in BST Holdings v OSHA, who are represented by the Liberty Justice Center in Chicago and the Pelican Institute for Public Policy in Louisiana, argue not only that the ETS is not “necessary,” but also that the agency has failed to identify a “serious danger” of the kind Congress had in mind because “COVID-19 is not a toxic substance or agent.” They add that “OSHA cannot attempt to include this disease in the expression” new dangers “. “This phrase, they say, should be understood in context to exclude airborne viruses: or agents deemed toxic or physically harmful,” the catch-all phrase to encompass other dangers should be read in light of , and limited to, elements similar to those which precede it. “
Nonsense, government lawyers to say: “The COVID-19 virus is both a
harmful agent and a new danger. This easily fits the definition of an “agent”, which is “a chemically, physically or biologically active principle”. definition of agent. The government’s brief also cites Merriam-Webster’s opinion definition of virus as an “infectious agent,” and notes that OSHA has defined “Toxic substance or harmful physical agent” to include “biological agent[s](bacteria, virus, fungus, etc.). “
Not so fast, say the complainants in their brief response:
Respondents rely on Merriam-Webster Definition 2b, which defines âagentâ as âa chemically, physically or biologically active principleâ. But Merriam-Webster defines “principle” as “an ingredient (like a chemical) which exhibits or confers a characteristic quality”. And an “ingredient” is “something which goes into a compound or is an integral part of a combination or mixture”. It is therefore not a virus.
According to the Oxford Advanced American Dictionary, an “agent” is “a chemical or substance which produces an effect or a change or is used for a particular purpose”. Thus, in the context of the Act, “agent” means a substance that is “used for a particular purpose” in the workplace. The law was intended to protect workers from the substances they work with; that does not allow [OSHA] to impose a vaccine on 84 million American workers.
This understanding of agent reinforces the complainants’ more general argument that OSHA has gone beyond its mission to protect employees from workplace hazards because its ETS “is not related to the workplace.” By this, they mean that the danger posed by COVID-19 is not particularly acute in the workplace, as the risk exists in all settings where people encounter potential carriers. “OSHA is limited to regulating a ‘serious hazard’ which is more likely to happen in the workplace, âthey say. “In other cases [cited by the government], employees faced an increased risk of âserious dangerâ in the workplace. “
The brief mentions OSHA Standard dealing with blood-borne pathogens, which aims to protect “workers whose duties involve exposure to blood or other potentially infectious materials”. This example reinforces the argument that OSHA is supposed to address specific workplace risks, which do not include the population-wide threat posed by a contagious disease like COVID-19. As OSHA itself noted in the preamble to its ETS, “COVID-19 is not just a work-related hazard.”
At the same time, the standard for bloodborne pathogens appears to contradict the preferred definition of complainants of agent, since in this case, OSHA has treated infectious microorganisms as “harmful physical agents”. The government cites this precedent in its brief.
Notably, the bloodborne pathogens standard required employers to provide workers with free hepatitis B vaccination, but it did not require vaccination. the COVID-19 ETS for the healthcare industry that OSHA released in June.
Complainants argue that the ETS for private employers is “new” in four respects: “it does not deal with a toxic substance or agent”, “it is not related to the workplace”, ” it is making a vaccine mandatory for the first time, âandâ it tries to protect employees from themselves. â This last point is debatable, since OSHA has long required safeguards, such as “individual protection equipment“, which are at least in part aimed at preventing workers from accidentally injuring themselves. But the plaintiffs argue that the paternalism embodied in the vaccine’s mandate breaks new ground because it does not address a specific risk in the workplace.
“The purpose of [Occupational Safety and Health Act] is to provide workers with “safe and healthy working conditions,” the document said. âYet the ETS attributes the ‘serious danger’ to workers not to their working conditions but to their own ‘lack of vaccination’. This is not a working condition but a private health decision. Protecting employees from themselves, without being attached to the workplace, far exceeds the objectives of the Act. Respondents cannot cite any other precedent for this extreme paternalism. “
While the Occupational Safety and Health Act “is not a catch-all to exploit when Congress has not otherwise authorized federal action,” complainants say, “that is precisely how it is. used here “. The White House introduced the ETS as part of a larger effort to increase vaccination rates nationwide. The goal, it noted, is to “reduce the number of unvaccinated Americans by using regulatory powers and other actions to dramatically increase the number of Americans covered by immunization requirements.”
But the federal government has no general authority to protect public health, control communicable diseases, or require vaccination, all of which are primarily the responsibility of the state. This is why the administration has decided to formulate the vaccination mandate as a safety measure at work. We’ll see if the courts think that description fits.