미국 연방행정부의 백신접종명령에 대한 연방대법원의 집행정지결정과 시사점 ― National Federation of Independent Business v. OSHA (2022) 결정 분석 ―

초록

In a situation where it is expected that it will be difficult to completely eradicate COVID-19 due to the emergence of repeated mutations, a vaccine pass was implemented to improve economic damage, learning deficits, polarization, COVID-19 blue, and fatigue of medical staff. The vaccine pass actually forces vaccination by penalizing non-vaccinated people, so the conflict was expressed as a legal dispute. Among the legal problems, the issue to be examined in this paper is whether the provisions of the Infectious Disease Prevention Act are valid as a legal basis for the vaccine passes. The U.S. Supreme Court also ruled that the OSHA's vaccination order is an exercise of serious economic and political power, so it should be clearly stated when the federal parliament authorizes administrative agencies. However, they disagreed on whether the Occupational Safety and Health Act was the legal basis for the vaccination order. Majority opinion said, “The Occupational Safety and Health Act stipulates that the Minister of Labor sets occupational safety and health standards to protect workers from ‘typically significant risks faced by workers in the workplace’, so vaccination orders, which are characterized by general public health measures, exceed legal authority.” The concurring opinion also drew the major questions doctrine from the principle of separation of powers, saying that the Congress has not clearly assigned power to make decisions of “vast economic and political significance” to OSHA. However, the dissenting opinion said that because COVID-19 is transmitted by person-to-person contact in an enclosed indoor space, the Occupational Safety and Health Administration's vaccination order to protect workers from serious risks of COVID-19 is at the core of the Occupational Safety and Health Administration's mission. Major overseas countries such as the European Union, France, and Germany also stipulate the vaccine pass by law, which increases the vaccination rate by giving preferential treatment to vaccinated people and causing inconvenience to non-vaccinated people. The Constitutional Court of Korea also said, “In areas that have basic and important meaning to the national community and its members, especially areas related to the realization of the Constitutional rights of the people, the legislator, the representative of the people, must decide on its own essential matters.” However, Article 49(1) 2-2 of the Infectious Disease Prevention Act stipulates only “preparing a list of visitors” and “wearing a mask” as the disease control guidelines for places with a risk of spreading infectious diseases, and does not stipulate a “vaccine pass” with greater intensity of restrictions on Constitutional rights of the people. This would be said to be contrary to the principle of parliamentary reservation. In accordance with the principle of parliamentary reservation, it is necessary to stipulate the ‘vaccine pass’ in the law. In addition, if the disease control guidelines are issued with uncertain predictions in urgent situations, it will be effective in relieving rights to obtain the possibility of changes to the guidelines through temporary relief measures. Therefore, it is necessary to secure the effectiveness of remedies for rights by improving temporary relief measures such as applications for suspension of execution so that they can be carried out quickly by the court or the Constitutional Court.

키워드