OSHA’s COVID Safety Rule Is Far From Unprecedented

As a new wave of COVID-19 infections spreads around the country, the Supreme Court is preparing for a case on one of the nation’s most significant COVID safety rules. On January 7, the Court will hear arguments against the Occupational Safety and Health Administration (OSHA) regulation requiring large employers to mandate COVID-19 vaccination or testing among their workers in order to protect employees and their families from workplace-driven coronavirus outbreaks. The challengers, a group of business interests and Republican state attorneys general, immediately sued to stop enforcement, calling it “unprecedented.” But OSHA’s legislative and regulatory history make clear that there is nothing unprecedented about this life-saving policy.

Part of the impetus for the creation of OSHA in 1970 was the need to prevent infectious disease in the workplace. During committee hearings for the Occupational Safety and Health (OSH) Act, experts explained that state agencies had been unable to adequately protect employee health, noting their failure to protect employees from “biological or infectious hazards.” Congress created OSHA in part to address the threat of infectious disease transmission in the workplace.

Congress further indicated that it intended OSHA to have the authority to require vaccines and medical testing when it passed the OSH Act. A provision states that the Act does not “authorize or require medical examination, immunization, or treatment for those who object thereto on religious grounds, except where such is necessary for the protection of the health or safety of others.” This clearly implies that the Act allows “medical examination, immunization, or treatment” requirements, including when such requirements are “necessary for the protection of the health or safety of others.”

Such an interpretation should be uncontroversial. In fact, it is in keeping with bedrock principles of statutory interpretation. Among the “canons” of interpretation used by judges in interpreting statutory meaning is the “canon against surplusage,” which counsels judges to interpret all statutory provisions to have independent meaning. If OSHA did not have the authority to require vaccination, then this provision permitting religious exemption from immunization requirements would be meaningless. Based on this provision, courts should have no trouble affirming OSHA’s authority to implement this standard.

In case the statutory text left any doubt, the history of this provision further supports OSHA’s authority to require vaccination. While the Act was working its way through Congress, the Church of Christ, Scientist, wrote a letter expressing concern over the potential for its members to be required to submit to medical care, which the denomination generally opposes. Congress agreed that the Act could mandate medical procedures, as it added the religious exemption provision in response to the Church’s letter. Congress explicitly added reference to immunization to the provision, which the Church had not mentioned in its statutory proposal. This demonstrates that Congress intended to permit OSHA to require vaccination.

Such an interpretation is further supported by a senator’s floor statement during debate over the bill. During the floor debate, Senator Peter Dominick, a Republican from Colorado, noted that medical examinations “are obviously contemplated under the bill because an exception is provided for those who object to ‘medical examination, immunization, or treatment on religious grounds.’” Sen. Dominick’s observation that OSHA would have the authority to mandate medical examinations applies equally to vaccination.

It isn’t just the legislative history of the OSH Act that offers precedent for the vaccination or testing standard. OSHA’s enforcement of the act over the past fifty years also demonstrates its authority to protect employees from infectious disease. In 1991, OSHA adopted a bloodborne pathogens standard requiring employers to prevent the transmission of HIV and hepatitis by giving employees the opportunity to receive the hepatitis B vaccine and tracking potential exposures. Judge Richard Posner, ordinarily no friend to workplace regulation, upheld the standard, explaining, “The infectious character of HIV and HBV warrants even on narrowly economic grounds more regulation than would be necessary in the case of a noncommunicable disease.”

OSHA can and has acted to prevent risks of transmission far lower than the risk of COVID posed by an unvaccinated, untested coworker in the workplace. For example, workers exposed to blood are required to always behave as if the blood could transmit a pathogen, regardless of whether a bloodborne pathogen is actually present.

OSHA also frequently regulates health threats that originate outside the workplace. For example, some employers must test their employee’s hearing and protect it against reaching a certain damage level in the workplace, even if those employees’ hearing was already damaged outside of work. As these regulations illustrate, OSHA can also protect workers from coworkers infected with COVID, even if those coworkers contracted it outside of the workplace.

OSHA’s vaccine or testing standard is well within its authority, as established by decades of precedent. From the beginning, OSHA was meant to prevent the spread of infectious diseases among workers, including vaccination as a possible tool. While the United States workforce faces a threat unlike anything we’ve ever seen before, there’s nothing new about OSHA’s response.

Co-authored by Nina Henry and Alex Jonlin, NYU Law students in Policy Integrity’s Regulatory Policy Clinic.