How Do Unvaccinated Workers Differ From Toxin-Spewing Machinery, Says Justice Sotomayor?

The irony, of however, is that the Omicron form renders the entire idea of unvaccinated persons posing a risk to the vaccinated outdated, as it transmits just as easily between vaccinated and unvaccinated people.

Hearing Justices Sonia Sotomayor and Stephen Breyer approach unvaccinated workers as if they were subhuman was one of the creepier parts of today's Supreme Court arguments in the OSHA vaccine-mandate case. Sotomayor's statement is as follows:

JUSTICE SOTOMAYOR: So what’s the difference between this and telling employers, where sparks are flying in the workplace, your workers have to be — wear a mask?

MR. KELLER: When sparks are flying in the workplace, that’s presumably because there’s a machine that’s unique to that workplace. That is the —

JUSTICE SOTOMAYOR: Why is the human being not like a machine if it’s spewing a virus, blood-borne viruses? Are you questioning Congress’s power or desire that OSHA do this? It already in 1991 told OSHA to issue regulations with respect to Hep C and B.

Leave aside the fact that COVID isn't "blood-borne" — in case you're wondering, the authorization for hepatitis in the workplace is expressly stated in the statute, which undermines her argument that the statute's more general language contains an implicit congressional power to treat all human workers as potential workplace hazards. I guess if I were a progressive pundit, I'd write 20 self-righteous lines on the history of degrading others by seeing them as disease vectors no different as dangerous machinery, but I believe readers get the point: We should not go down this route.

Then there was Justice Breyer, arguing that it should be acceptable for OSHA to adopt regulations that drive workers out of the workplace because, hey, some people might quit rather than work with unvaccinated others:

And they said, in our view, hmm, yeah, that’s right, some people may quit, maybe 3 percent. But more may quit when they discover they have to work together with unvaccinated others because that means they may get the disease.

When Breyer remarked "unvaccinated people," the raw transcript fails to reflect the disdain in his voice. The Court's liberals contend that it's permissible for workplace regulations to drive away employees because other individuals could resign rather than work with them, which is a surprising turn of events. Imagine the outrage if this had been spoken by a judge concerning, say, HIV-positive persons. Justice William Brennan was defending a tuberculosis-affected teacher in 1987. What a shift in liberal attitudes there has been.

The irony, of however, is that the Omicron form renders the entire idea of unvaccinated persons posing a risk to the vaccinated outdated, as it transmits just as easily between vaccinated and unvaccinated people. That doesn't negate the need of vaccination; the increased ease with which the disease spreads means you're putting yourself at higher danger by not being vaccinated, because it's harder to avoid the sickness, making it all the more important to build your immunity against serious illness. However, this discourse of unvaccinated workers being harmful subhuman presences in the workplace is already out of date in 2022.

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