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SCOTUS blocks Biden’s workplace vaccine rule


The Supreme Court on Thursday blocked enforcement of President Joe Biden’s requirement that workers at larger businesses get vaccinated against Covid-19 or submit to weekly testing, a major blow to the administration’s strategy for fighting the coronavirus’ spread.

But the justices ruled that a separate federal policy insisting that many health care workers be vaccinated could move forward.

The decision to halt the most widely applicable mandate — the Occupational Safety and Health Administration’s emergency standard for businesses and other organizations with more than 100 employees — split the court, 6-3, along the usual ideological lines.

The high court’s action allowing the health care worker rule to proceed garnered a narrow five-justice majority formed by the court’s three Democratic appointees as well as two Republican-appointed jurists, Chief Justice John Roberts and Justice Brett Kavanaugh.

The court’s action on the business mandate punts that issue back to the 6th U.S. Circuit Court of Appeals. But it signals that if the case returns to the high court, a majority of the justices will likely side with businesses and Republican-led states that sued to squelch the requirement, which would affect an estimated 84 million workers as the Omicron variant is driving up cases and straining health care systems.

Still, given the fast-moving nature of the pandemic, the Supreme Court’s interim actions take on added weight.

The court’s conservative members wrote in an unsigned opinion that OSHA — part of the Labor Department — had overstepped its authority in issuing the regulation.

Labor Secretary Marty Walsh “lacked authority to impose the mandate,” they said. “Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided.”

There was no basis for “withholding interim relief,” they said, declining to lift a stay on its enforcement.

“We are told by the States and the employers that OSHA’s mandate will force them to incur billions of dollars in unrecoverable compliance costs and will cause hundreds of thousands of employees to leave their jobs,” they wrote. “For its part, the Federal Government says that the mandate will save over 6,500 lives and prevent hundreds of thousands of hospitalizations. It is not our role to weigh such tradeoffs.”

The court’s three liberal justices argued that their colleagues were disregarding the input of public health experts in their decision.

“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,” Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor wrote in an unusual joint dissent.

Groups like the National Retail Federation — one of more than two dozen trade associations contesting the regulation — were quick to praise the court’s move blocking the OSHA rule, known as an emergency temporary standard.

“The Supreme Court’s decision to stay OSHA’s onerous and unprecedented ETS is a significant victory for employers,” the National Retail Federation’s David French said in a statement. “As NRF and other plaintiffs articulated in our briefs before the court, OSHA clearly exceeded its authority promulgating its original mandate under emergency powers without giving stakeholders the benefit of a rulemaking process.”

“NRF urges the Biden Administration to discard this unlawful mandate and instead work with employers, employees and public health experts on practical ways to increase vaccination rates and mitigate the spread of the virus in 2022.”

The court heard arguments for and against lifting the stays on the rules in a special session Friday at which its conservative members appeared sympathetic to challengers — while liberal justices seemed flabbergasted at the idea of preventing them from taking effect.

Numerous states and business groups are among those fighting the broader regulation, which requires employers with 100 or more employees to ensure workers are vaccinated against Covid-19 or submit to weekly testing and wear masks at all times while in the workplace.

The mostly GOP-led states say that the rule oversteps federal authority and that their governments should be the ones to regulate vaccination. Businesses argue that implementing the standard would cause them irreparable economic harm, including a loss of workers to smaller businesses not subject to the rule.

The challengers to the vaccination requirement for workers at health care facilities that receive Medicare and Medicaid funding argued that enforcing the rule could effectively shutter many health care facilities in rural areas where vaccination rates are lower and vaccine hesitancy is strong, even among health care workers.

The court’s conservative justices wrote that they “conclude that the Secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID–19.”

The bulk of the broad business rule was set to take effect Monday. Employers would have until Feb. 9 to develop their testing strategies for the unvaccinated.

Both the OSHA standard and the health worker guidelines have been in legal limbo since the Biden administration issued them last year.

The OSHA mandate was initially blocked by the 5th U.S. Circuit Court of Appeals, but the 6th Circuit lifted the stay after it was chosen via lottery to hear a consolidated version of the various legal challenges to the mandate.

In the health care workers’ cases, the Justice Department asked the Supreme Court to stop two injunctions against the mandate that were issued by U.S. District Court judges in Louisiana and Missouri.

Biden announced that requirement on Sept. 9 as part of a dramatic expansion of the administration’s bid to boost vaccination rates as it redoubled efforts to rein in the virus. Officials anticipated the mandate will affect more than 50,000 health facilities and 17 million workers.

After the 8th U.S. Circuit Court of Appeals turned down the Biden administration’s request that a temporary freeze on the mandate in 10 states be lifted, the 5th Circuit partially lifted a nationwide block on the mandate.

Litigation is also pending in other courts over other Covid-19 vaccination mandates imposed by the Biden administration, including ones for uniformed military personnel, federal workers and federal contractors. Those cases have yet to reach the Supreme Court.

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