Today was the day that OSHA was to have started requiring all employers with 100 or more workers to begin enforcing rules that would require employees to either be vaccinated against COVID-19 or undergo weekly testing.
OSHA indicated it would move slowly on enforcing the vaccine regulations while the U.S. Supreme Court considers whether OSHA has the legal authority to enforce the rule ordered by President Joe Biden. The ruling could come at any moment.
Companies that fail to comply with the order to have workers fully vaccinated by today could face fines in the range of $14,000. That figure could go higher for companies that willfully violate the order.
The new order says employers will have the burden of determining the vaccine status of all employees, meaning they will have to see proof of vaccination and maintain records. It says employers must, “Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.”
The court also will decide whether the federal government has the authority to force health care workers to be vaccinated without an option to stay unvaccinated and routinely test for the virus.
Based on the tone and content of the justices’ questions during a Friday hearing, there seemed to be less concern about mandating vaccines for health care workers than for everyone else. But some justices hinted that it may be an overreach for OSHA to require vaccinations as a means of making workplaces safe.
Chief Justice John Roberts indicated that he believes that states and Congress should address the issue of workplace safety and that if Congress intends for OSHA to have this level of workplace oversight, it should say so.
“It’s not our role to decide public health questions,” Justice Neil Gorsuch said. “But it is our role to decide who should decide.”
Justices Elena Kagan, Stephen Breyer and Sonia Sotomayor all said that the pandemic is an extraordinary threat that requires the kind of enforcement that OSHA was to have started today.
The key to the case
Here, again, is a reference I provided when OSHA first issued its order to employees that spelled out what the Biden administration says gives it the authority to impose the mandate for vaccination or testing.
The OSHA order says, in effect, that where there is a potential “grave danger” to employees, the government has the obligation and authority to protect them, and that Congress has granted OSHA virtually unlimited discretion to keep workers safe. The below passage was part of OSHA’s order to employers and is the cornerstone of its defense before the Supreme Court. I include the citation here because it will, in all probability, be key to the court’s ruling. I bolded some key passages.
The purpose of the Occupational Safety and Health Act of 1970 (OSH Act), 29 U.S.C. 651 et seq., is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.” 29 U.S.C. 651(b). To this end, Congress authorized the Secretary of Labor (Secretary) to promulgate and enforce occupational safety and health standards under sections 6(b) and (c) of the OSH Act.1 29 U.S.C. 655(b). These provisions provide bases for issuing occupational safety and health standards under the Act. Once OSHA has established as a threshold matter that a health standard is necessary under section 6(b) or (c)—i.e., to reduce a significant risk of material health impairment, or a grave danger to employee health—the Act gives the Secretary “almost unlimited discretion to devise means to achieve the congressionally mandated goal” of protecting employee health, subject to the constraints of feasibility. See United Steelworkers of Am. v. Marshall, 647 F.2d 1189, 1230 (D.C. Cir. 1981)
A standard’s individual requirements need only be “reasonably related” to the purpose of ensuring a safe and healthful working environment. Id. at 1237, 1241; see also Forging Indus.
Ass’n v. Sec’y of Labor, 773 F.2d 1436, 1447 (4th Cir. 1985). OSHA’s authority to regulate employers is hedged by constitutional considerations and, pursuant to section 4(b)(1) of the OSH Act, the regulations and enforcement policies of other federal agencies. See, e.g., Chao v. Mallard Bay Drilling, Inc., 534 U.S. 235, 241 (2002).
The OSH Act in section 6(c)(1) states that the Secretary “shall” issue an emergency temporary standard (ETS) upon a finding that the ETS is necessary to address a grave danger to workers. See 29 U.S.C. 655(c). In particular, the Secretary shall provide, without regard to the requirements of chapter 5, title 5, United States Code, for an emergency temporary standard to take immediate effect upon publication in the Federal Register if the Secretary makes two determinations: 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 that such emergency standard is necessary to protect employees from such danger. 29 U.S.C. 655(c)(1).
The reality is that OSHA likely does not have enough inspectors to vigorously inspect and enforce this rule. NPR points out that OSHA will have to rely on worker complaints to find noncompliant companies. According to OSHA, there are about 1,850 federal and state inspectors covering some 8 million worksites nationwide.
How many children are hospitalized with or because of COVID-19?
During the Supreme Court hearing on vaccine/testing mandates, Justice Sotomayor stunned listeners when she said, “We have hospitals that are almost at full capacity with people severely ill on ventilators. We have over 100,000 children, which we've never had before, in serious condition, many on ventilators.”
Nobody seems to know where she came up with that number, but the truth is certainly nowhere close to that many children hospitalized or in serious condition from COVID-19. I will show you how difficult it is to know the true number, but know that it is likely closer to 3,700 children. That’s a lot, and it is also not 100,000.
I do not mean to hint that pediatric COVID-19 cases are not rising or are unconcerning; they are both concerning and rising. But the exact number is elusive because states do not uniformly report the figures in a timely way. We can discern, as I will show you, that cases are rising, but the numbers are so fluid that journalists default to reporting the increase in pediatric COVID-19 hospitalizations as a percentage rather than a raw number. Or in some cases, journalists just repeat the descriptions from health officials who say the pediatric infections are “skyrocketing, exploding, climbing and filling pediatric ICUs.”
To complicate matters, some states stopped reporting demographics, many states report age groups differently and data is woefully slow to arrive.
Percentages are not terribly useful when the baseline number is small and a small number is added to it. (If you start with one case and then another case comes in, you have a 100% increase, though you are not being overrun with new cases.)
We can get up-to-date data on how many COVID-19 cases are detected and, for certain, the number is rising. Right now, something close to one out of 10 children in the U.S. has tested positive for COVID-19 since the start of the pandemic, according to the American Academy of Pediatrics. But since children tend not to get severely ill from COVID-19, positive cases may not be the most important number, except that it might speak to the urgent need to safely vaccinate younger children.
The AAP says 0.1%-1.6% of children who test positive to COVID-19 require hospitalization. If that number holds through the omicron wave, then you could predict how many pediatric hospitalizations we might have from the number of positive cases, and the prediction is that it will rise.
The American Academy of Pediatrics says:
COVID-19 cases among US children have reached the highest case count ever reported since the start of the pandemic. For the week ending December 30th, over 325,000 child COVID-19 cases were reported. This number is a 64% increase over the 199,000 added cases reported the week ending December 23rd and an almost doubling of case counts from the two weeks prior.
The Associated Press expressed the rise in pediatric COVID-19 cases as a comparison of cases per population: “Since mid-December, with the highly contagious omicron variant spreading furiously around the country, the hospitalization rate in these youngest kids has surged to more than 4 in 100,000 children, up from 2.5 per 100,000.”
One problem is that states seem to report cases by different age groups. One state reports it as 0-4 years old, another 0-11. The Centers for Disease Control and Prevention’s figures are based on data from drawn from over 250 hospitals in 14 states. So, again, there is no solid national figure. Why?
On Jan. 3, admissions were running at around 1,354 per day, NBC News said. NBC News did its own analysis of the state-supplied data it could find and says nine states have reported record numbers of COVID-related pediatric hospitalizations: Connecticut, Georgia, Illinois, Kentucky, Massachusetts, Maine, Missouri, Ohio and Pennsylvania, as well as Washington, D.C.
To give you a sense of scale, Children's Hospital New Orleans said it had seen a spike in children who have COVID-19 and it is currently treating 14 children, three of them in intensive care. In the first week of January, Texas Children's Hospital in Houston counted close to 70 pediatric COVID-19 patients.
Here is an update from South Carolina’s children’s hospitals:
