Supreme Court blocks Biden’s vaccine mandate for the workplace

The Supreme Court on Thursday blocked President Biden’s plan to require that most workers be vaccinated against COVID-19 or undergo weekly testing.

But the justices, in a separate decision, upheld a smaller and more targeted regulation that will require workers in hospitals and nursing facilities to be vaccinated. This rule, once put into effect, is expected to cover about 17 million people working in healthcare, the administration said.

In blocking the broader workplace rule, the court’s conservative majority agreed with Republican state attorneys who contended the president had overstepped his authority by requiring workers in companies and agencies with more than 100 employees to be vaccinated or tested regularly. There were exemptions for those who worked outdoors or at home, or had medical or religious objections.

The vote was 6-3. Biden’s rule was based on the Occupational Safety Health Act of 1970, which protects employees from toxins and other dangers in the workplace. The justices said it does not go so far as to authorize mandatory vaccinations.

In an unsigned opinion, the court’s conservatives said “it is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind — addressing a threat that is untethered, in any causal sense, from the workplace... Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”

The three liberals dissented. They said the decision “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.”

However, Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh joined with the court’s three liberals to uphold Biden’s testing requirement for hospitals and nursing homes. That requirement is based on the Medicare and Medicaid Acts, which authorize federal health officials to set standards to protect the health and safety of elderly and sick patients.

Biden said the court’s decision to uphold the requirement for healthcare workers “will save lives: the lives of patients who seek care in medical facilities, as well as the lives of doctors, nurses and others who work there.”

He said he was disappointed in the OSHA ruling, but called on states and businesses to step up and voluntarily institute vaccination requirements to protect workers, customers and the broader community. The ruling “does not stop me from using my voice as president to advocate for employers to do the right thing to protect Americans’ health and economy.”

Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan said they would have upheld both regulations.

The outcome is not a surprise because of the makeup the court. The conservative majority is highly skeptical of new and far-reaching federal regulations.

In a separate concurring opinion, Justice Neil M. Gorsuch said the states have broad authority to impose rules to cope with COVID-19. He said the “only question [in the OSHA case] is whether an administrative agency in Washington, one charged with overseeing workplace safety, may mandate the vaccination or regular testing of 84 million people. Or whether, as 27 States before us submit, that work belongs to state and local governments across the country and the people’s elected representatives in Congress.”

The National Federation of Independent Business had joined Republican states in challenging the workplace rule, and Karen Harned, executive director of its legal center, called the decision “a welcome relief for America’s small businesses, who are still trying to get their business back on track since the beginning of the pandemic.”

The businesses and states told the court it would cost businesses billions of dollars to comply with the vaccinate-or-test rule, and they predicted it would “cause hundreds of thousands of employees to leave their jobs.”

The administration, however, said the rule, if enforced, would save more than 6,500 lives and prevent hundreds of thousands from being hospitalized.

Lawrence Gostin, the faculty director of health law project at the Georgetown Law School, said the OSHA decision is “a major setback to President Biden’s COVID strategy and will prolong the pandemic in the United States. The OSHA employer mandate was the single most effective policy for getting people vaccinated. Without a wide-reaching federal mandate, it’s unlikely the national vaccination rate of just over 60% will improve.”

Biden’s vaccine rules were announced in November and were due to take effect this month, but they were put on hold while the legal challenges went forward.

The lower courts had been split.

The Ohio-based 6th Circuit, in a 2-1 decision, cleared the way for the workplace rule to take effect. Judges in Missouri, Louisiana and Texas had blocked the narrower rule that applied to hospitals and nursing facilities.

Lawyers on both sides filed emergency appeals in the Supreme Court asking the justices to decide quickly and issue orders that allowed or blocked the rules from going into effect.