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Supreme Court blocks federal mandate for private workers to vaccinate or test

President Joe Biden announces the rollout of the Covid-19 vaccine for children ages 5 to 11 at a press conference at the White House on Wednesday, Nov. 3, 2021. (Image via Courthouse News)

WASHINGTON (CN) — The Supreme Court gutted the Biden administration’s pandemic-response strategy Thursday in a split decision that puts a vaccine-or-test mandate for large businesses on ice.

While no judge signed the decision granting a stay of the mandate from the Occupational Safety and Health Administration, Justices Clarence Thomas and Samuel Alito joined a concurring opinion from Justice Neil Gorsuch. Justice Stephen Breyer, Elena Kagan and Sonia Sotomayor took the rare step meanwhile of co-signing a dissent that labels Covid-19 “a menace in work settings.”

They contend that OSHA did what Congress asked it to do. “In our view, the Court’s order seriously misapplies the applicable legal standards,” the dissent states. “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 liberal justices said OSHA’s mandate works to prevent workplace harm, and that the mandate is necessary to tackle the dangers during a pandemic where Covid-19 poses a grave danger to the public writ large.

Skewering the majority’s focus on whether OSHA has power to address a disease outside the workplace, Breyer, Kagan and Sotomayor emphasized that there is no dispute that Covid-19 poses a grave danger and that a vaccination policy is necessary to safeguard against it. They argue that nothing in OSHA’s charge from Congress supports the majority decision. 

“That is what the majority today does — impose a limit found no place in the governing statute,” the liberal justices wrote.

As the majority saw it, however, OSHA lacks the authority to impose the vaccine-or-test mandate. The ruling holds up the mandate as a “significant encroachment into the lives — and health — of a vast number of employees.”

“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,” the ruling states. “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.” 

Expressing his disappointment with the ruling for large businesses Thursday, President Joe Biden called on business leaders to enforce their own vaccine mandates.

“The Court has ruled that my administration cannot use the authority granted to it by Congress to require this measure, but that 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,” Biden wrote. “I call on business leaders to immediately join those who have already stepped up — including one third of Fortune 100 companies — and institute vaccination requirements to protect their workers, customers, and communities.”  

For some experts, however, the prospect of different policies across the nation is an alarming one. 

“As with so many employment-related Covid-19 laws, this would create a patchwork of differing and potentially conflicting rules across the states that will be difficult and burdensome for multistate employers to track and comply with,” Michelle Strowhiro, a partner at McDermott Will & Emery, said via email ahead of Thursday’s decision.

U.S. Solicitor General Elizabeth Prelogar framed the risk of contracting Covid-19 as a grave danger in arguments last week, but the high court and its conservative supermajority found this an insufficient basis to mandate workplace vaccines. 

“Permitting OSHA to regulate the hazards of daily life — simply because most Americans have jobs and face those same risks while on the clock — would significantly expand OSHA’s regulatory authority without clear congressional authorization,” the ruling states. 

The majority later contrasted vaccinations to fire or sanitation regulations, which can always be undone at the end of the workday. 

“Imposing a vaccine mandate on 84 million Americans in response to a worldwide pandemic is simply not ‘part of what the agency was built for,’” the ruling states. 

OSHA’s vaccine-or-test mandate began enforcement on Monday. Large companies were required to start tracking the vaccine statuses of their employees and require those who aren’t yet inoculated to wear masks. The testing component of the mandate was not scheduled to begin enforcement until Feb. 9. 

Along with a separate vaccination mandate for health care, President Joe Biden championed the policies as the key to bringing the country out of a pandemic that has killed over 800,000 Americans. 

“I am disappointed that the Supreme Court has chosen to block common-sense life-saving requirements for employees at large businesses that were grounded squarely in both science and the law,” Biden wrote Thursday. “This emergency standard allowed employers to require vaccinations or to permit workers to refuse to be vaccinated, so long as they were tested once a week and wore a mask at work: a very modest burden.”

Business groups and Republican-led states quickly launched challenges to OSHA’s mandate after it was announced in November. The rule drew so many challenges from across the country that a lottery system was triggered, sending the cases to the Sixth Circuit, where a three-judge panel ultimately saw no reason to delay the rule.

Thursday’s decision comes less than a week after rare arguments on the fast-moving appeals.

At the more than three-hour session, Justice Gorsuch and fellow Trump appointee Brett Kavanaugh echoed Chief Justice John Roberts regarding a rarely used exception to an agency’s authority to interpret its own statutes. The major questions doctrine limits an agency’s authority when they make rules that go beyond their charge from Congress. The justices implied that Congress did not explicitly say OSHA could mandate vaccines to protect employees so the agency would have to go back to lawmakers to ask them for permission. 

Arguments on OSHA’s mandate were consolidated at the Friday hearing with separate challenges to another of the federal government’s mandates, this one requiring Covid-19 vaccination for any health care worker whose employer receives federal funding.