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Supreme Court Says No to OSHA Employers Vaccine-or-Test Mandate

Supreme Court Says No to OSHA Employers Vaccine-or-Test Mandate

Jan. 13, 2022
The mandate oversteps the existing OSHA emergency standards and raises questions about the separation of powers between the executive and legislative branches of government, the court said.

The Supreme Court blocked an OSHA rule that would have required workers at private companies with more than 100 employees to receive COVID-19 vaccinations or take weekly tests for the virus. In a 6-3 ruling on January 13, the majority found the mandate oversteps OSHA’s authority as a workplace safety agency. In a separate 5-4 ruling, the Court allowed a similar mandate limited to most healthcare workers to remain in effect.

While Thursday’s rulings may spell doom for the wider private-employer requirement, many major manufacturers have already issued their own vaccination mandates, including Boeing Co., General Electric Co., Microsoft Corp. and Tyson Foods Co. A third form of the mandate that would apply to federal contractors, including Boeing and GE, is currently still blocked by lower courts and has not been reviewed by the Supreme Court, according to the Associated Press.

The large-employer mandate was announced September 4 and published in the national register November 5. It directed employers to secure proof of their employees' COVID-19 vaccinations by January 4 and require unvaccinated employees to wear masks and submit weekly tests for the virus. The standard went into effect immediately but was blocked the next day, November 6, by a federal appeals court in Louisiana.

Occupational Hazard or Public Health Issue?

According to the conservative majority on the court, OSHA’s emergency temporary standard mandating employers ensure workers are vaccinated or tested for the virus goes beyond the agency’s sphere of influence by ruling on matters of public health.

“OSHA has never before imposed such a mandate,” wrote the six justices in their unsigned concurring opinion. “Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID-19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here.”

Three judges—Justice Breyer, Justice Sotomayor, and Justice Kagan—dissented from the majority. In their opinion, the justices wrote that COVID-19 is “a menace in work settings” and thus an appropriate target for OSHA emergency regulation.

The majority of justices on the bench—Justice Roberts, Justice Alito, Justice Thomas, Justice Kavanaugh, Justice Gorsuch, and Justice Coney Barrett—disagreed. The broadness of the mandate, they wrote, goes beyond OSHA’s sphere of expertise. According to the majority opinion, the Secretary of Labor is empowered “to set workplace safety standards, not broad public health measures” (emphasis original).

“Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most,” it read. “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.”

In their dissent, Justices Breyer, Sotomayor and Kagan wrote that the majority, by blocking the mandate, is “acting outside of its competence and without legal basis” to stymie experts and officials operating as Congress authorizes and requires them to. COVID-19, they argue, is an applicable target for OSHA rules in the same way the agency is allowed to issue workplace regulations on fire and flood safety despite the fact that homes face the same threats.

“If OSHA’s Standard is far-reaching—applying to many millions of American workers—it no more than reflects the scope of the crisis,” they wrote.

Mandate for Healthcare Workers Allowed to Stand

Despite blocking the private-employer mandate in its National Federation of Independent Business v. OSHA ruling, the Court allowed a similar mandate for most healthcare workers in the U.S. to stand. In an opinion in Biden v. Missouri, five of the nine justices agreed to let a vaccination mandate apply to approximately 10 million healthcare workers who work at hospitals and healthcare centers.

Chief Justice Roberts and Justice Kavanaugh joined the first three pro-mandate Justices in their opinion that the Secretary of Health and Human Services has the authority to pass rules “to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety.” Justice Clarence Thomas, in his dissent, wrote that the government hadn’t done enough to show it had the authority for such a mandate.

President Biden, Secretary of Labor React

President Biden, in a statement, praised the Court for allowing the healthcare-worker mandate to stand but lamented the larger block on what he called “common-sense life-saving requirements.”

“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 said, and called for business leaders and states to implement their own vaccination requirements.

Secretary of Labor Marty Walsh echoed Biden’s disappointment. “The commonsense standards established in the ETS remain critical, especially during the current stage, where unvaccinated people are 15-20 times more likely to die from COVID-19 than vaccinated people,” he said in a statement and swore OSHA would “hold businesses accountable” regardless of how the cases eventually end.

According to the Associated Press, all nine justices on the Supreme Court are personally vaccinated and have received booster shots. CDC data shows that COVID-19 vaccines and booster shots are effective at substantially reducing infection and death from COVID-19 and its variants.

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