Why no12/14/2022 ![]() “Toxic” generally refers to “poisons,” like arsenic, while “harmful physical agents” generally does not include bacteria, which are living pathogens, or viruses, which might or might not be “living” organisms, but certainly can reproduce, unlike arsenic. It directs the labor secretary to protect employees against “toxic materials or harmful physical agents.” The act does not define those terms, so traditional principles of statutory interpretation require a reader to consult the dictionary for their meaning. ![]() Now, turn to the text of the Occupational Safety and Health Act (or OSH Act). If so, why would Congress have granted OSHA that power? If your answer is, “I can’t imagine why,” you’re on the right track. Just as only physicians can diagnose disease, prescribe medication, or perform surgery, health-care agencies can only make medical decisions that Congress wants made and which are constitutionally authorized.įifth, Congress has trusted the Food and Drug Administration (FDA) and the Centers for Disease Control and Prevention (CDC) to regulate vaccines, yet neither agency may order the public to be vaccinated. There is no Department of Making Life Better Without Leaving Anyone Behind. T-cells cannot be tossed into the trash at 5 p.m.įourth , Congress limits each agency’s authority in order to focus its responsibilities. By contrast, vaccinations are not something we wear, they are something that is injected into our bodies to spur the immune system to generate antibody responses to pathogens. PPE offers a protective external shield to fend off harmful substances, preventing them from piercing the human skin, a shell that can be shed at the end of the workday. Third, vaccinations are materially different from personal protective equipment (PPE), like goggles, gloves, or masks. As the Supreme Court explained last summer, “our system does not permit agencies to act unlawfully even in pursuit of desirable ends,” which includes “combatting the spread of the COVID-19 Delta variant.” Second, agencies cannot undertake unauthorized action even in an emergency. Agencies cannot vest themselves with additional power by issuing rules. Start by understanding the playing field in which this issue arises.įirst, federal agencies have only the authority that Congress has granted them by statute. Small wonder that more than half the states are suing to stop the Biden administration’s vaccine mandate. Yet one thing is perfectly clear: OSHA lacks the legal authority to force a COVID-19 vaccine on Americans who do not want it. Plus, if the mandate is upheld, OSHA could immediately begin enforcement proceedings against anyone not then in compliance. OSHA could ask the Sixth Circuit to vacate the stay. That announcement is less helpful to employers than it might seem.
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