Justices' Two-Faced Standard on Workplace Safety

            The Supreme Court has instituted an escalating series of restrictions and changes in operations since the start of the COVID-19 pandemic in the United States early in 2020 in order to protect the justices’ workplace from the pandemic Those changes, all but unprecedented, include barring the general public from courtroom sessions and conducting oral arguments remotely by telephone instead of in person in the courtroom.

            In fact, the Supreme Court building has been closed to the general public for two full terms and still today (January 2022) “out of concern for the health and safety of the public and Supreme Court employees,” according to the posted announcement on the Court’s web site. In a divided decisiond ast week, however, the Court on Jan. 13 held that the federal Occupational Safety and Health Administration (OSHA) does not enjoy the same discretion to promulgate an unprecedented regulation to protect workplaces in the face of the deadly pandemic that has claimed 800,000 lives and resulted in millions of hospitalizations that have strained health systems all across the country.

            The federal workplace safety agency adopted the regulation – a so-called “emergency temporary standard” or ETS – on November 5, 2021, late in the second year of the pandemic, in response to a directive two months earlier from President Joe Biden aimed at increasing vaccinations against the coronavirus. The agency acted on the authority of a statutory provision that requires it to act if it finds “(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 [emphasis added].”

            In staying enforcement of the rule, the Supreme Court emphasized that OSHA, established in the1970s, had never issued a comparable rule to deal with a widespread public health issue. The lack of any precedent for such a rule is hardly surprising: the federal government had no workplace safety role during the previous 20^th century epidemics: the yellow fever and Spanish flu epidemics early in the 20^th century and the polio epidemic in the 1950s. The country has experienced no similar epidemic in OSHA’s history. In fact, the COVID-19 pandemic is uniquely pervasive and uniquely dangerous in comparison to the previous outbreaks.

In issuing the rule, OSHA elaborated point by point in a 79-page preamble published in the Federal Register (86 Fed. Reg. 61402-61480). Given the grim statistics, OSHA readily concluded that occupational exposure to the covid-19 virus was a “new hazard” that presented “a grave danger” to workers. “OSHA has determined that occupational exposure to SARS–CoV–2, including the Delta variant (B.1.617.2 and AY lineages), presents a grave danger to unvaccinated workers in the U.S. . . . ,” the agency wrote. “This finding of grave danger is based on the science of how the virus spreads, the transmissibility of the disease in workplaces, and the serious adverse health effects, including death, that can be suffered by the unvaccinated.”

The Supreme Court acknowledged that OSHA “is tasked with ensuring occupational safety— that is, ‘safe and healthful working conditions.’” But the six conservative justices in the majority concluded that the act “empowers the Secretary to set workplace safety standards, not broad public health measures.”

OSHA answered that point in its published rationale for the rule: “The fact that COVID–19 is not a uniquely work-related hazard does not change the determination that it is a grave danger to which employees are exposed, nor does it excuse employers from their duty to protect employees from the occupational transmission of SARS–CoV–2.”

            The agency elaborated on the particular risks posed in workplaces: “SARS–CoV–2 is readily transmissible in workplaces because they are areas where multiple people come into contact with one another, often for extended periods of time. When employees report to their workplace, they may regularly come into contact with co-workers, the public, delivery people, patients, and any other people who enter the workplace. Workplace factors that exacerbate the risk of transmission of SARS–CoV–2 include working in indoor settings, working in poorly-ventilated areas, and spending hours in close proximity with others.”

            Once the Court resumed oral arguments in the courtroom midway through OT2021, the justices imposed a series of restrictions on, among others, the Supreme Court press corps. Reporters seeking to attend oral arguments in person were required to submit a negative covid test,  administered within a few days of the court sessions, and had to be masked upon entering the building and masked in the courtroom. Reporters also had to be seated in the courtroom socially distanced from each other, instead of elbow-to-elbow in the press gallery.

            The justices themselves were masked on the bench, but with one exception: the ultra-libertarian justice, Neil Gorsuch, who conspicuously refused to wear a mask without providing any explanation for declining to adopt the sensible precaution for his colleagues’ well-being. Apart from Gorsuch’s refusal on the mask issue, none of the justices has publicly questioned any of the restrictions that the Court has instituted for their safety and the Court employees. Why then, one might ask, should the rest of the nation’s workplaces be similarly protected?

            Writing for the three liberal justices in dissent, Breyer tore the majority’s rationales to shreds by emphasizing the particularized risk in workplaces. The disease, Breyer explained, “spreads by person-to-person contact in confined indoor spaces, so causes harm in nearly all workplace environments. And in those environments, more than any others, individuals have little control, and therefore little capacity to mitigate risk. COVID–19, in short, is a menace in work settings. The proof is all around us: Since the disease’s onset, most Americans have seen their workplaces transformed.” He might have mentioned the changes at the Court itself as well.