Supreme Court Blocks Biden Vaccine Mandate for Large Employers, Allows Health-Care Vaccine Requirement

Pedestrians pass the U.S. Supreme Court in Washington, D.C., October 29, 2001. (Andy Clark/Reuters)

The Supreme Court temporarily suspended the Biden administration’s vaccine-or-test mandate for large employers on Thursday, but allowed the administration’s vaccine mandate for health-care workers at facilities that receive federal funding to go into effect.

In the first case, the conservative majority on the bench ruled in a 6-3 vote to block President Biden’s vaccine requirement for private businesses pending further review by the court. Biden had argued that the order derived authority from the 1971 Occupational Safety and Health Act (OSHA), which empowered the federal government to regulate workplace health and safety standards.

However, the majority opinion, issued without an author, argued that the mandate exceeded its statutory authority and raised separation of powers concerns “in the absence of clear delegation from Congress.” It was inappropriate for the Biden administration to invoke the Emergency Temporary Standard provision of the law since it applies to very “narrow circumstances,” the Court said.

“Applicants are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate. Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided,” the Court’s unsigned decision read.

Specifically, the Labor Secretary must demonstrate that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards” and that the “emergency standard is necessary to protect employees from such danger.” The Court said the risk posed by Covid in the workplace failed to meet these prongs.

“Congress has nowhere clearly assigned so much power to OSHA,” Justice Gorsuch wrote in a concurring opinion joined by Justice Thomas and Justice Alito.

Moreover, the Court declared that the OSHA mandate was far too broad in treating all commercial sectors the same. While the order includes narrow exceptions for remote workers or those who work exclusively outdoors, “the regulation otherwise operates as a blunt instrument,” the court said. “It draws no distinctions based on industry or risk of exposure to COVID–19.”

While the court acknowledged the testing exemption for employees who choose not to get vaccinated, it noted that employers are not required to offer this option, leaving some employees in the vulnerable position of getting fired with no recourse.

The Court touched on the medical liberty question, calling the mandate an “encroachment into the lives and health of employees” and noting that, unlike rules for workplace dangers on the job, vaccination is irreversible.

OSHA, the Court said, was charged with regulating “occupational” hazards, exclusive to the workplace, for the safety and health of employees rather than public health generally, “which falls out of OSHA’s sphere of expertise.”

In order for the mandate to be permissible, given that Covid presents universal risk regardless of the setting, the Court said it would need to target occupation-specific risks related to the virus in certain industries, such as research laboratories.

The plaintiffs appealed to the Supreme Court to review the case after the Sixth Circuit court vacated the stay of the Fifth Circuit, allowing the mandate to go back into effect. The high court then admitted the case into its emergency docket and heard arguments on Friday, subsequently delivering its own stay Thursday.

In the second case dealing with the vaccine requirement for healthcare workers at facilities that receive federal funding, the Court dismissed the statutory objections and allowed the mandate to be enacted, since those institutions fall within the government’s regulatory domain. “We agree with the Government that the Secretary’s rule falls within the authorities that Congress has conferred upon him,” the Court’s majority opinion read.

Congress granted the Secretary of Health and Human Services the power to “impose conditions on the receipt of Medicaid and Medicare funds” that for the health and safety of individuals who provide those services, the Court noted.

In the dissenting opinion, Justice Thomas, with Justice Alito, Justice Gorsuch, and Justice Barrett joining in dissent, made a statutory argument that the Centers for Medicare & Medicaid Services is not authorized to prescribe something as specific as a vaccine mandate by its respective laws.

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