The Supreme Court on Thursday blocked a key Biden administration covid-19 initiative 鈥 putting a stop, for now, to a rule requiring businesses with more than 100 workers to either mandate that employees be vaccinated against covid or wear masks and undergo weekly testing. The rule, which covers an estimated 80 million workers, took effect earlier this week.
At the same time, however, the justices said that a separate rule requiring covid vaccines for an estimated 10 million health workers at facilities that receive funding from Medicare and Medicaid could go forward. The justices removed a temporary halt imposed by a lower court late last year that affected health care facilities in half the states.
In emergency oral arguments held Jan. 7, a majority of the justices seemed dubious that the federal government, through the Occupational Safety and Health Administration, had broad enough authority to require vaccines or tests for the bulk of the nation鈥檚 private workforce, particularly for a threat that is not job-specific.
Said the : 鈥淎 vaccine mandate is strikingly unlike the workplace regulations that OSHA has typically imposed. A vaccination, after all, 鈥榗annot be undone at the end of the workday.鈥欌
Three of the court鈥檚 conservatives 鈥 Justices Neil Gorsuch, Clarence Thomas and Samuel Alito 鈥 concurred with the decision in a signed opinion that laid out their concerns about OSHA鈥檚 authority. “The agency claims the power to force 84 million Americans to receive a vaccine or undergo regular testing,” they wrote. “By any measure, that is a claim of power to resolve a question of vast national significance. Yet Congress has nowhere clearly assigned so much power to OSHA.”
Liberals on the court 鈥 where anti-covid policies in the case 鈥 were outraged at the majority decision, arguing that just because a threat exists outside the workplace as well as inside, that should not prevent the federal safety agency from regulating it.
Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor wrote in a signed opinion, 鈥淲hen we are wise, we know not to displace the judgments聽of experts, acting within the sphere Congress marked out聽and under Presidential control, to deal with emergency聽conditions.聽Today,聽we are not wise.鈥
In the second pair of cases also argued Jan. 7, the justices weighed whether the federal government could place conditions on payments for Medicare and Medicaid to help ensure the safety of the patients whose care is being underwritten.
The health worker rule, , also unsigned, 鈥渇its neatly within the language of the statute. After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm.鈥
Four conservative justices 鈥 Thomas, Alito, Gorsuch and Amy Coney Barrett 鈥 dissented in the health worker case, arguing in a signed opinion that 鈥渢o the extent the rule has any connection to the management of Medicare, and Medicaid, it is at most a 鈥榯angential鈥 one.鈥
President Joe Biden lamented the court鈥檚 decision on the rule for large workplaces. 鈥淎s a result of the Court鈥檚 decision, it is now up to States and individual employers to determine whether to make their workplaces as safe as possible for employees, and whether their businesses will be safe for consumers during this pandemic by requiring employees to take the simple and effective step of getting vaccinated,鈥 he said .
The OSHA rules are opposed by many business groups, led by the small business advocacy organization the . It argued that allowing the rules to take effect would leave businesses 鈥渋rreparably harmed,鈥 both by the costs of compliance and the possibility that workers would quit rather than accept the vaccine.
The challenge to the Medicare and Medicaid rules, by contrast, came mostly from states, rather than the hospitals, nursing homes and other facilities most directly affected. State officials charge that the rules would jeopardize the ability of health care providers, particularly those in rural areas, to retain enough staffers to care for patients.
The cases on the OSHA rule are National Federation of Independent Business v. Department of Labor and Ohio v. Department of Labor. The cases involving the CMS rule are Biden v. Missouri and Becerra v. Louisiana.
