Biden Admin - COVID Regulations Flashcards
OSHA Vax + Test Standard - Overview
- emergency temporary standard
- OSHA perceived COVID as threat to workers in workplace
- first version of this came out in June 2021, but was limited to healthcare setting
-> required masking, distancing + paid time off for getting vaccine + recovering from COVID - second version Nov 2021 - required that employers with at least 100 employees require covered workers to receive a COVID–19 vaccine or else wear a mask and be subject to weekly testing
- Prof noted unprecedented nature of what the administration is facing, trying to respond
OSHA Vax + Test Standard - OSHA’s Rationale
- challenge of establishing that this is a workplace hazard
- point to transmissibility of COVID in workplace, but technically don’t compare to risk of transmission outside workplace
- workplace is arguably pretty big concern though - transmission can be exacerbated through poor ventilation, close contact, extended periods of time indoors
–> workplace= a congregate setting (most people who had to work during pandemic work w/ others, raises transmissibility issues because it’s a congregate setting) - BUT don’t have a ton of data - difficult to get peer-reviewed studies w/ ongoing emergency
NFIB v. OSHA - Facts
- deals w/ OSHA temporary vax + test standard
What does OSHA need to show for emergency temporary standard?
1) employees are exposed to grave danger
2) emergency standard is necessary to protect them from the danger
NFIB v. OSHA - Ruling + Reasoning
Court doesn’t really get to q of whether there’s grave danger or not
Instead, goes more in the vein of MQD + says not clear congressional authorization to do such a big rule
-> considers rule as blunt instrument, not distinguishing across industries
-> COVId not a specifically occupational hazard, more one faced by public at large, + therefore beyond OSHA authority (public health policy, vs. statute designed to protect people in the workplace)
-> emphasizing distinction between occupational risk + risk more generally
NFIB v. OSHA - Summary
- Congress created OSHA to set workplace safety standards -> challenged rule goes well beyond that + is effectively a broad public health measure
-> Even the exceptional circumstances of the COVID-19 pandemic do not justify such an expansion in the agency’s authority. - Gorsuch concurrence - States + Congress, not OSHA, have the authority to decide how to respond to the pandemic
NFIB v. OSHA - Breyer Dissent
- pandemic directly affects the safety of workplaces -> thus OSHA has authority to issue regulations to curb the effects of the pandemic in workplaces
- by granting the stay, SCOTUS acted outside of its competence and without legal basis, displacing judgments of officials who have the responsibility and expertise to respond to workplace health emergencies
NFIB v. OSHA - Vaccine Mandate
- we discussed how majority really didn’t like this aspect
- 84 million people - SCOTUS says a lot
- PPE - you can take this off, vs. vaccine stays with you – they say this is the tell that OSHA got its purpose mixed up here -> they chose a measure that is not limited to the occupational hazard workers were facing, chose a measure that follows workers when they’re out in the public -> shows it’s a public health measure rather than an occupational hazard, + therefore evidence of mismatch
NFIB v. OSHA - MQD
- majority technically never says MQD specifically
- BUT using the language without the express phrase - discussion of how many people impacted, cost of compliance, + lack of clear congressional authorization
NFIB v. OSHA - Remaining OSHA Moves?
- could’ve issued a standard to protect workers who were particularly at risk (in labs doing research on COVID, those in particularly crowded workplaces)
HHS Rule
- required that healthcare workers at facilities that participate in Medicare + Medicaid programs be fully vaccinated against COVID-19 unless they qualify for a medical or religious exemption
- this reg was issued on the same day as the OSHA reg, + SCOTUS issued decision on same day
- note relationship of Medicare/Medicaid - technically not requiring healthcare providers to mandate vaccines, but effectively doing so b/c these programs are so crucial (you could theoretically opt out, but you’d lose your medicare/Medicaid $)
Biden v. Missouri - Summary of Decision
- rule was w/in HHS authority
- core function of HHS is to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety, and the interim rule at issue here seeks to do precisely that
- Thomas dissent joined by three justices (Alito, Gorsuch, + Barrett) - said no statutory authority for this
Comparison of OSHA Rule vs. HHS Rule
- OSHA protects workers, vs. HHS protects patients -> HHS provided ev re connection between vaccinating staff + safety of patients
-> People in hospital settings often at severe risk, also pre-existing conditions
Generally easier for HHS to get data for its rule
- Longer history of tracking this data
- More reqs for reporting
- COVID is not as unprecedented in its details (even though it is in scope) as it was in the general industry in which OSHA is regulating
Biden v. Missouri - Reasoning
- not as much focus on $ cost
- historical analogies - HHS has frequent protocols re handwashing, vaccines not unprecedented req for healthcare workers
- political valence - court did not rule generally popular (overwhelming support from healthcare organizations)
OSHA and HHS Rules - Administrative Perspective
- Prof emphasized that main concern was OSHA rule would drag HHS rule down w/ it (importance of coordinating carefully)
- ## complications of how the facts on the ground interact with trying to figure out the best way to use the tools that you have
Title 42
- allowed CDC to prevent individuals from coming into the United States, even if eligible for asylum, allegedly to control the spread of COVID
- Trump admin put in place (felt more to me like trying to use public health as excuse to limit imm)
- Biden admin initially extended, then announced end in April 2022
