The Supreme Court on Thursday issued a stay of the OSHA vaccine-or-test requirement on private businesses of 100 or more workers, dealing a setback to the Biden administration’s effort to control the COVID pandemic.
By a 6-3 vote, with the three liberal justices dissenting, the court found a likelihood the challengers will prevail and that OSHA exceeded its authority.
At the same time, the justices voted 5-4 to allow the Biden administration to require health care workers at facilities that treat Medicare and Medicaid patients to be vaccinated, subject to religious or medical exemptions.
Justices Samuel Alito and Clarence Thomas dissented, joined by Justices Neil Gorsuch and Amy Coney Barrett.
In the OSHA case, the conservative majority argues the agency lacks the power to do this — saying Congress never authorized such a sweeping power and that vaccination is irreversible and different.
“The Secretary has ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense,” the court said. “This is no ‘everyday exercise of federal power.’ It is instead a significant encroachment into the lives—and health—of vast number of employees. We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” There can be little doubt that OSHA’s mandate qualifies as an exercise of such authority.”
In dissent, the liberals argue extraordinary times call for extraordinary measures, and that Congress gave the agency leeway to respond.
“In our view, the Court’s order seriously misapplies the applicable legal standards. And in so doing, it stymies the Federal Government’s ability to counter the unparalleled threat that COVID–19 poses to our Nation’s workers. Acting outside of its competence and without legal basis, the Court displaces the judgments of the Government officials given the responsibility to respond to workplace health emergencies.”
The court — during nearly four hours of oral arguments in two highly expedited cases — appeared to fully comprehend the gravity of the moment for American public health, but many justices voiced reservations about the federal government’s authority to impose such policies nationwide.
At issue was a pair of emergency regulations released late last year by the Biden administration and challenged by a coalition of Republican-led states and business groups.
One rule, by the Occupational Safety and Health Administration that took effect on Monday, would have required private employers of 100 or more employees to ensure they’re vaccinated or subject the unvaccinated to a mandatory mask-and-testing policy, at the company’s expense.
The Department of Health and Human Services has separately ordered all health care facilities that treat Medicare and Medicaid patients with federal funding to require vaccinations of all workers and staff, with limited exemptions allowed for religious or health reasons. The policy is in effect is roughly half the country after a federal appeals court halted it in other areas.
Combined, both policies would cover roughly 100 million Americans, officials said.
“Traditionally, states have had the responsibility for overseeing vaccination mandates. I just rejected a challenge to one in New Mexico,” said Justice Gorsuch. “Why isn’t this a major question left to the states and Congress?”
Chief Justice John Roberts shared the concern: “It sounds like the sort of thing that states will be responding to or should be or — and that Congress should be responding to or should be, rather than agency by agency, the federal government, the executive branch, acting alone.”
Twenty-two states already mandate COVID-19 vaccinations for health care workers while six states explicitly ban them, according to the National Academy for State Health Policy. No state issues a similar requirement for private businesses.
The court’s three liberal justices voiced emphatic support for the rules.
“Nearly a million people have died,” said Justice Elena Kagan. “I don’t mean to be dramatic here. I’m just sort of stating facts. And this is the policy that is most geared to stopping all this.”
More than 205 million Americans have been fully vaccinated against COVID-19, but tens of millions of others who are eligible have not received their first shot, according to the Centers for Disease Control and Prevention.
“Three quarters of a million new cases yesterday! That’s 10 times as many as when OSHA put this ruling,” said Justice Stephen Breyer. “Is that what you’re doing now, to say it’s in the public interest in this situation to stop this vaccination rule with nearly a million new cases every day? I mean, to me, I would find that unbelievable.”
Justice Sonia Sotomayor, who joined the arguments remotely from her chambers inside the building because of omicron concerns, dismissed challengers’ concerns about labor shortages, noting that the virus is already sidelining workers in key industries.
“Catching COVID keeps people out of the workplace for a long time,” she said.
“And, by the way, there is no mandate here for vaccines,” she added, alluding to the masking-and-testing option for those who refuse a shot.
Attorney Scott Keller, representing the National Federation of Independent Businesses, which opposes the rule, replied: “States can act, private businesses have acted on historic levels. This is going to cause a massive economic shift in the country, billions upon billions of non-recoverable costs.”
Solicitor General Elizabeth Prelogar forcefully argued that the government has a moral and legal obligation to protect workers and vulnerable Medicare and Medicaid patients at facilities that receive federal funds.
“Exposure to COVID-19 on the job is the biggest threat to workers in OSHA’s history,” she said. The agency has estimated that it’s vaccine-or-testing rule would save 6,500 lives and prevent 250,000 hospitalizations in just the first six months.
Several conservative justices, including Justice Amy Coney Barrett, suggested that the policy, if well-intentioned, was simply too broad. Barrett wondered aloud about landscape businesses, for example, that work entirely outside and face substantially lower risk of virus transmission. She also questioned how long the agency’s emergency authority would last given that COVID may become endemic.
Prelogar argued that there are exceptions for employees who work alone or from home and that Congress explicitly authorized OSHA to protect health and safety of workers in the face of “grave danger.” But many of the court’s conservatives weren’t buying it.
“That was 50 years ago that you’re saying Congress acted. I don’t think you had COVID in mind,” Roberts said of the 1970 Occupational Safety and Health Act. “That was almost closer to the Spanish Flu than it is to today’s problem.”
Justice Alito argued that unvaccinated Americans, who face the gravest threat of COVID infection, have chosen to accept the risk and should be allowed to do so. He said the vaccine mandates force Americans to take on a potential risk to their health that may be unwanted.
“I’m not saying the vaccines are unsafe. I’m not contesting that in any way,” he insisted. “[But] there is a risk, right? … Has OSHA ever imposed any other safety regulation that imposes some extra risk on the employee?”
This is developing story. Please check back for updates.