The statute was meant to protect workers from the substances with which they are working it does not allow to mandate a vaccine on 84 million American workers. Respondents rely on definition 2b from Merriam-Webster, which defines "agent" as "a chemically, physically, or biologically active principle." But Merriam-Webster defines "principle" as "an ingredient (such as a chemical) that exhibits or imparts a characteristic quality." And an "ingredient" is "something that enters into a compound or is a component part of any combination or mixture." It is, thus, not a virus.Īccording to the Oxford Advanced American Dictionary, an "agent" is "a chemical or a substance that produces an effect or a change or is used for a particular purpose." Thus, in the context of the Act, "agent" means a substance that is "used for a particular purpose" in the workplace. Not so fast, the plaintiffs say in their reply brief:
The government's brief also cites Merriam-Webster's definition of virus as an "infectious agent," and it notes that OSHA has defined "toxic substance or harmful physical agent" to include "biological agent(bacteria, virus, fungus, etc.)."
It readily fits the definition of an 'agent,' which is 'a chemically, physically, or biologically active principle.'" That's a quote from Merriam-Webster's definition of agent. Nonsense, the government's lawyers say: "The COVID-19 virus is both a physically OSHA, who are represented by the Chicago-based Liberty Justice Center and Louisiana's Pelican Institute for Public Policy, argue not only that the ETS is not "necessary" but also that the agency has failed to identify a "grave danger" of the sort Congress had in mind, because "COVID-19 is not a toxic substance or agent." They add that "OSHA cannot attempt to shoehorn this disease into the phrase 'new hazards.'" That phrase, they say, should be understood in context to exclude airborne viruses: "Because Congress expressly allowed for an ETS to be issued for 'substances or agents determined to be toxic or physically harmful,' the catch-all phrase to encompass other hazards must be read in light of, and limited to, items similar to those that come before it." OSHA has to identify a "grave danger" to employees "from exposure to substances or agents determined to be toxic or physically harmful or from new hazards." It also has to show the emergency standard is "necessary to protect employees from such danger." That matters because of the legal requirements for an ETS. OSHA address an arcane question that is apt to come up repeatedly in challenges to the vaccine mandate: Is the COVID-19 virus an "agent"? Last Saturday, responding to a lawsuit filed by a Louisiana supermarket chain and six employees of a Texas company that makes kitchen ventilation systems, the 5th Circuit imposed a temporary stay on the ETS, which it said raises "grave statutory and constitutional issues." The court asked the government to "respond to the petitioners' motion for a permanent injunction" and invited a reply from the petitioners. OSHA's "emergency temporary standard" (ETS) decrees that companies with 100 or more employees must require them to be vaccinated against COVID-19 or wear face masks and undergo weekly testing. The dispute hinges largely on the meaning of key phrases in that law, which is why both sides in the 5th Circuit case did a dictionary dive, looking for definitions that bolster their arguments. The Justice Department says the mandate plainly falls within the agency's powers under the Occupational Safety and Health Act. Opponents of the mandate, which the Occupational Safety and Health Administration (OSHA) published last Friday, argue that it exceeds the agency's statutory authority.
Court of Appeals for the 5th Circuit this week suggest that dueling dictionary definitions could figure prominently in the legal dispute over the federal vaccine mandate for private employers.
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