Patient receives Covid-19 vaccine.

NFIB v. OSHA and Its Contradiction with the GOP’s Disability Employment Agenda

By Doron Dorfman

The COVID-19 pandemic has highlighted the incoherence of the Republican party’s employment agenda, which, on the one hand, deifies full, in-person employment, and, on the other, makes the workplace hostile to this aim through relentless deregulation.

Throughout the pandemic, the GOP has vocally advanced the narrative that employees must physically return to the office to prevent recession.

Additionally, the conservative view frames disability law and policy in terms of its economic value: these policies are desirable insofar as they increase productivity and participation in the job market among disabled Americans.

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U.S. Supreme Court interior.

Who ‘Deserves’ Health, Who ‘Deserves’ Freedom? A Recurrent Divide in SCOTUS Vaccine Mandate Cases

By Wendy E. Parmet

In October 2020, Martin Kulldorff, Sunetra Gupta and Jay Bhattacharya issued what they called the Great Barrington Declaration (GBD). In it, they argued that “The most compassionate approach [to the pandemic] … is to allow those who are at minimal risk of death to live their lives normally to build up immunity to the virus through natural infection, while protecting those who are at highest risk. We call this Focused Protection.”

Eighteen months and over 600,000 additional deaths later, the Supreme Court embraced that view.  On January 13, in Missouri v. Biden (Missouri), the Court by a 5-4 vote refused to stay a Centers for Medicare and Medicaid (CMS) rule requiring health care workers in facilities that participate in Medicare or Medicaid to be vaccinated against COVID-19 (subject to legally-required exemptions) in order to protect patients. In contrast, in National Federation of Independent Business v. Department of Labor (NFIB), the Court by a 6-3 vote ruled that the Occupational Safety and Health Administration (OSHA) likely exceeded its statutory authority by requiring employers with over 100 employees to mandate vaccination (subject to required exemptions) or masking and testing.  The per curiam majority stated: “Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.” Concurring, Justice Gorsuch added that a broad reading of OSHA’s authority would “enable intrusions into the private lives and freedoms of Americans.”

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U.S. Supreme Court

The Supreme Court’s Rulings on COVID-19 Vaccine Mandates, Explained

By Kaitlynn Milvert

In a pair of rulings issued January 13, the Supreme Court put on hold the federal vaccine-or-test requirements for large employers, but allowed federal vaccination requirements for health care workers to take effect while they are litigated in the lower federal courts.

The Court decisions each addressed questions of whether federal agencies — the Occupational Safety and Health Administration (OSHA) and the Centers for Medicare and Medicaid Services (CMS) — have authority to set these vaccination-related requirements.

In doing so, the Court drew new and unprecedented lines between the kinds of risks that agencies operating outside of the health care context — such as OSHA — have power to address through federal regulations. The Court’s decisions on these issues are likely to loom large in future litigation as federal vaccine requirements continue to be litigated in the lower courts.

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Vial and syringe.

The OSHA Vaccine Mandate: A Roundup of State Responses

By Kaitlynn Milvert

When the federal Occupational Health and Safety Administration (OSHA) published its “vaccine-or-test” requirements for large employers on November 5, 2021, it immediately faced backlash from many states.

In the weeks that have followed, states not only have filed numerous lawsuits challenging the OSHA requirements, but also have actively pushed through legislation that seeks to limit the scope or use of vaccine requirements in the workplace.

This new wave of state legislation contributes to a landscape of uncertainty surrounding the legal status of workplace vaccine requirements and available exemptions.

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Emergency department entrance.

“Stick to the Science”? FDA, Ethics, and Pandemics

Cross-posted from COVID-19 and The Law, where it originally appeared on February 8, 2021. 

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Throughout the current pandemic, Dr. Anthony Fauci and other public health experts have called on the government to “stick to the science.” This was at the same time that former President Donald Trump repeatedly undermined scientific expertise and prioritized political interests over responsible public health practices. Yet the particular ways in which the Trump administration mishandled the pandemic can divert attention from more fundamental challenges confronting government actors in any emergency — challenges that respect for science alone is insufficient to address. These challenges concern the norms guiding regulators’ exercise of their power under the law, as well as the proper role of values in public health and public policy more broadly.

FDA has struggled throughout COVID-19 to maintain high standards of integrity, including independence from undue political influence. We see this most clearly in the decisions FDA has faced in applying its power to issue emergency use authorizations (EUAs) for medical countermeasures against COVID-19. FDA’s experience using its emergency powers during COVID-19 speaks to the complex relationship between science and ethics in health policy — between empirical fact finding and normative questions involving ethics and public values.

This post reflects on the ethical implications of FDA’s use of its emergency powers, and suggests opportunities for greater accountability and more systematic decision-making by health regulators moving forward.

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people waiting in a line.

How the Government Can Prevent Individuals from Using Wealth to Cut the Vaccine Line

Cross-posted from COVID-19 and The Law, where it originally appeared on January 27, 2021. 

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Since the Food & Drug Administration granted emergency use authorization for the COVID-19 vaccines produced by Pfizer-BioNTech and Moderna in December 2020, there have been many debates on vaccine allocation and prioritization.

As noted by Harvard Law School Professor Glenn Cohen in a recent interview with Annie Kapnick for the COVID-19 and The Law series, the issue of vaccine distribution is “complicated” because of competing factors decision-makers must consider. The relative weights placed on these factors has led to very different prioritization schemes. Initially, the Centers for Disease Control and Prevention (CDC) recommended a hybrid plan that appeared to prioritize individuals who were most likely to contract the virus (e.g., first responders, grocery store workers) over individuals most vulnerable to severe symptoms or death from the virus if contracted (e.g., individuals over the age of 65 not in long-term care facilities). In the United Kingdom, the prioritization groups were primarily based on vulnerability. Similarly, when looking more narrowly at the various plans being implemented at the state level in the United States, there are high degrees of variation.

This post does not seek to evaluate the merits of these or other specific vaccine allocation plans. Rather, it will address a risk that all plans likely face: the potential of individuals using their wealth and access to “cut the line” and be vaccinated ahead of schedule.
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Syringe being filled from a vial. Vaccine concept illustration.

From 9/11 to COVID-19: A Brief History of FDA Emergency Use Authorization

Cross-posted from COVID-19 and The Law, where it originally appeared on January 14, 2021. 

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The ongoing fight against COVID-19 has thrown a spotlight on the Food and Drug Administration (FDA) and its power to grant emergency use authorizations (EUAs). EUA authority permits FDA to authorize formally unapproved products for temporary use as emergency countermeasures against threats to public health and safety.

Under § 564 of the Food, Drug, and Cosmetic Act (FD&C Act), use of FDA’s EUA authority requires a determination that an emergency exists by secretaries of the Department of Homeland Security, the Department of Defense, or the Department of Health and Human Services (HHS), as well as a declaration by the HHS Secretary that emergency circumstances exist warranting the issuance of EUAs. Each issuance of an EUA requires that FDA conclude that:

  • it is reasonable to believe that a given product “may be effective” as an emergency countermeasure,
  • the known and potential benefits of authorization outweigh the known and potential risks, and
  • no formally approved alternatives are available at the time.

Annie Kapnick’s post on COVID-19 and FDA’s EUA authority provides a helpful overview of FDA’s emergency powers and their use in response to the pandemic. A brief look at the history of FDA’s emergency powers, including key events leading up to their enactment — Thalidomide, swine flu, AIDS, and 9/11 — offers perspective on the situation facing FDA today and its implications for the future. The history of EUA illustrates how its use today against COVID-19 involves fundamental questions about the role of public officials, scientific expertise, and administrative norms in times of crisis.

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Washington, USA- January13, 2020: FDA Sign outside their headquarters in Washington. The Food and Drug Administration (FDA or USFDA) is a federal agency of the USA.

COVID-19 and the FDA Emergency Use Authorization Power

Cross-posted from COVID-19 and The Law, where it originally appeared on November 10, 2020. 

By Anne Kapnick

The Food and Drug Administration (FDA) is responsible for protecting public health by regulating the production, distribution, and consumption of food, cosmetics and drugs. In the healthcare arena (the focus of this post), the FDA strives to ensure the safety, efficacy, and security of drugs, biological products, and medical devices. The FDA also ensures that the “public get[s] the accurate, science-based information they need to use medical products and foods to maintain and improve their health.” This blog post provides an overview of the FDA’s emergency authorization powers, analyzes the extent of their usage in the COVID-19 pandemic, and concludes by flagging potential concerns regarding the FDA’s management of this vast power.

Click here to read the full post on COVID-19 and The Law.