(WASHINGTON) — 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 — Stephen Breyer, Sonia Sotomayor and Elena Kagan — 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 argued Congress never authorized the agency to use 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 argued 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.”
In oral arguments last Friday, the Supreme Court wrestled with the unprecedented COVID-19 public health emergency, authorities’ urgent push to protect Americans and the power of federal agencies to impose vaccine mandates or vaccine-or-test requirements on tens of millions of workers.
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.
In the case involving health care workers, Chief Justice John Roberts and Justice Brett Kavanaugh joined the liberals in concluding federal law and common practice have more clearly affirmed the secretary’s power to mandate health workers vaccines.
“Congress authorized the Secretary to promulgate, as a condition of a facility’s participation in the programs, such “requirements as [he] finds necessary in the interest of the health and safety of individuals who are furnished services in the institution,"” the majority wrote.
“Relying on these authorities, the Secretary has established long lists of detailed conditions with which facilities must comply to be eligible to receive Medicare and Medicaid funds. Such conditions have long included a requirement that certain providers maintain and enforce an “infection prevention and control program…” the majority said.
The court also pointed out most hospitals and health systems do not oppose the rule and in fact commonly require employees to be vaccinated for hepatitis B, flu, measles, and mumps.
Justices Thomas and Alito took a narrower view in dissent, saying the federal government authority to impose such a rule does not exist.
This means more than 17 million health care workers at 76,000 federally funded facilities will now be covered by this rule.
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.
This is developing story. Please check back for updates.
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