Supreme Court blocks Biden’s shot-or-test rule for workers

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A divided US Supreme Court blocked the centerpiece of President Joe Biden’s push to get more people vaccinated amid a Covid-19 surge, rejecting an Occupational Safety and Health Administration (OSHA) rule that would have required 80 million workers to get shots or periodic tests.

The court let a separate rule take effect requiring shots for workers in nursing homes, hospitals and other facilities that receive Medicare and Medicaid payments from the federal government.

The ruling on OSHA limits Biden’s options for increasing the country’s vaccination rate as the Omicron variant propels a spike in cases. The US Centers for Disease Control and Prevention (CDC) says only 63 percent of the country is fully vaccinated and of that group just 37 percent have received a booster shot. More than 800,000 people in the US have died from the virus.

“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 court said in an unsigned opinion.

The Court’s three liberals—Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor—dissented. The decision “stymies the federal government’s ability to counter the unparalleled threat that Covid–19 poses to our nation’s workers,” they said in an unusual joint opinion.

Biden said in a statement that he was disappointed the court blocked “common-sense life-saving requirements for employees at large businesses that were grounded squarely in both science and the law.” He said it was now up to states and private employers to determine whether to institute such requirements to keep their workplaces safe.

The ruling is a victory for 26 business groups, led by the National Federation of Independent Business, and 27 Republican-led states. They sued to challenge the OSHA policy, saying it exceeded the workplace-safety agency’s authority.

“Today’s decision is welcome relief for America’s small businesses, who are still trying to get their business back on track since the beginning of the pandemic,” said Karen Harned, executive director of NFIB’s Small Business Legal Center.

Emergency Rule

The OSHA rule required employers with 100 or more workers to make them get vaccinated or be tested regularly, potentially at their own expense. Although the rule had partially taken effect, OSHA had said it wouldn’t issue citations until at least February 9 to employers who were trying in good faith to comply with the testing requirements.

OSHA issued the rule as a so-called emergency temporary standard, or ETS. Under federal law, the agency can put an ETS in place immediately for six months but must meet a more demanding legal test by showing it is “necessary” to protect employees from “grave danger.”

OSHA estimated before the Omicron variant emerged that the standard would save more than 6,500 worker lives over six months.

The SC had been receptive to targeted vaccine mandates issued by state and local officials, repeatedly rejecting religious objections. But the OSHA case centered not on religious rights but on the power of a federal agency whose governing statute doesn’t explicitly authorize vaccine requirements.

The health-care vaccination rule, issued by the Centers for Medicare & Medicaid Services (CMS), will apply to 15 different kinds of health facilities. The rule, which provides exemptions for medical and religious reasons, was challenged by separate groups of states led by Missouri and Louisiana.

In permitting that rule in a separate unsigned opinion, the court said Congress had authorized the agency to take steps to protect the health and safety of Medicaid and Medicare recipients.

“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,” the court said.

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett dissented.

“These cases are not about the efficacy or importance of Covid–19 vaccines,” Thomas wrote for the group. “They are only about whether CMS has the statutory authority to force health-care workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo.”

Biden said the health-care ruling “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 added: “It will cover 10.4 million health-care workers at 76,000 medical facilities. We will enforce it.”

The OSHA cases are National Federation of Independent Business v. Department of Labor, 21A244, and Ohio v. Department of Labor, 21A247. The CMS cases are Biden v. Missouri, 21A240, and Becerra v. Louisiana, 21A241.

Significant victory

Many large corporations were silent on Thursday’s ruling by the high court to block a requirement that workers at businesses with at least 100 employees be fully vaccinated or else test regularly for Covid-19 and wear a mask on the job.

Target’s response was typical: The big retailer said it wanted to review the decision and “how it will impact our team and business.”

The Biden administration argues that nothing in federal law prevents private businesses from imposing their own vaccine requirements. However, companies could run into state bans on vaccine mandates in Republican-controlled states. And relatively few businesses enacted their own rules ahead of the OSHA requirement, raising doubt that there will be rush for them now.

In legal terms, the Supreme Court’s conservative majority said the OSHA lacked authority to impose such a mandate on big companies. The court, however, let stand a vaccination requirement for most health-care workers.

The National Retail Federation, the nation’s largest retail trade organization and one of the groups that challenged the OSHA action, called the Court’s decision “a significant victory for employers.” It complained that OSHA acted without first allowing public comments, although administration officials met with many business and labor groups before issuing the rule.

Chris Spear, the president of the American Trucking Associations, another of the groups that fought the OSHA rule, said it “would interfere with individuals’ private health care decisions.”

Karen Harned, an official with the National Federation of Independent Business, said that as small businesses try to recover from nearly two years of pandemic, “the last thing they need is a mandate that would cause more business challenges.”

But mandate supporters called it a matter of safety for employees and customers.

Dan Simons, co-owner of the Founding Farmers chain of restaurants in the Washington area, said vaccine mandates are “common sense.” He requires his 1,000 employees to be fully vaccinated; those who request an exemption must wear a mask and submit weekly Covid test results.

“If your priority is the economy, or your own health, or the health of others, you would agree with my approach,” Simons said.

Administration officials believe that even though the OSHA rule has been blocked, it drove millions of people to get vaccinated. But companies that used mandates to achieve relatively high vaccination rates may decide that they have accomplished enough.

Ford Motor Co. said it was “encouraged by the 88 percent of US salaried employees who are already vaccinated.” The carmaker said it would review the court decision to see if it needs to change a requirement that most US salaried workers get the shots.

Labor advocates were dismayed by the ruling.

“This decision will have no impact on most professional and white collar workers, but it will endanger millions of frontline workers who risk their lives daily and who are least able to protect themselves,” said David Michaels, who led OSHA during the Obama administration and now teaches at the George Washington University’s School of Public Health.

For their part, labor unions had been divided all along about Biden’s attempt to create a vaccine mandate, with many nurses and teachers groups in favor, but many police and fire unions opposed. Some unions wanted the right to bargain over the issue with companies.

The United Auto Workers, which encourages workers to get vaccinated, said the decision won’t change safety protocols such as face masks, temperature checks and distancing when possible for more than 150,000 union members at General Motors, Ford and Stellantis factories.

The Service Employees International Union, which represents more than 2 million service industry workers, said the Supreme Court’s decision is a relief for health-care workers but leaves others without critical protections.

“In blocking the vaccine-or-test rule for large employers, the court has placed millions of other essential workers further at risk, caving to corporations that are trying to rig the rules against workers permanently,” the union said.

The union called on Congress and states to pass laws requiring vaccinations, masks and paid sick leave. Workers also need better access to testing and protective equipment, the union said.

The United Food and Commercial Workers International Union (UFCW), the largest union for grocery workers and meatpacking plants, said that the Supreme Court decision fails to recognized the “extreme health risks” America’s front-line food and retail workers face on the job.

“Frontline workers need to be protected and this decision needlessly ignores that there was a better way to address this issue without negating this mandate,” said Marc Perrone, CEO of the UFCW International in a news statement.

Meanwhile, employers have been split on what to do with their unvaccinated workers. Among 543 US companies surveyed in November by insurance broker and consulting firm Willis Towers Watson, fewer than one in five required vaccination. Two-thirds had no plans to require the shots unless the courts upheld the OSHA requirement.

Jeff Levin-Scherz, an executive in the firm’s health practice, said most companies with mandates would keep them because they are working. He said nothing short of a mandate can get vaccination rates to 90 percent, and “you really need a very high level of vaccination to prevent community outbreaks.”

United Airlines was one of the first major employers to announce a mandate, back in August. CEO Scott Kirby has said that 99 percent of United employees either got vaccinated or submitted a request for exemption on medical or religious grounds.

United declined to comment Thursday, but in earlier comments Kirby has sounded committed to the mandate for his employees because “it was the right thing to do for safety.”

Airlines fall under a separate Biden order that required federal contractors to get their workers vaccinated. That requirement was not part of Thursday’s Supreme Court ruling, but it has been tied up separately since early December, when a federal district judge in Georgia issued a preliminary injunction barring enforcement of the mandate.

Bloomberg News and AP