The Supreme Court is hearing arguments Friday about the legality of two initiatives at the core of the Biden administration’s efforts to tackle the coronavirus in the workplace through vaccine mandates.
The competitors — states led by Republican officials, corporations, religious groups and others — say Congress has not authorized the measures, adding that they are unnecessary and in some ways counterproductive.
The administration says workplace safety and health care laws have given it broad authority to take bold action in the face of a deadly pandemic.
The two most comprehensive measures, aimed at companies with 100 or more employees, would force a vaccine or testing mandate for more than 84 million workers. The administration estimated that the law would vaccinate 22 million people and prevent 250,000 hospitalizations.
Another measure requires that workers in hospitals and other health care facilities that participate in Medicare and Medicaid be vaccinated against the coronavirus. The requirement will affect more than 17 million workers, the department said, and will “save hundreds or even thousands of lives each month.”
The Supreme Court remains closed to the public, but the justices are hearing arguments in person, with the exception of Justice Sonia Sotomayor, who was participating remotely from her room. The court provides a live audio broadcast on its website.
A court spokeswoman said all judges were fully vaccinated and received a booster dose.
The Supreme Court has repeatedly upheld state mandates on the vaccine in a variety of contexts against constitutional challenges. The cases before the court differ, primarily because they raise the question of whether Congress has authorized the executive branch to make the requirements.
The answer will mostly turn to the language of the relevant laws and whether the management has followed appropriate procedures in issuing the requirements.
The vaccination or testing requirement for large employers was issued in November by the Department of Labor’s Occupational Safety and Health Administration, or OSHA.
Employers are allowed to give their workers the option to get tested weekly in lieu of getting the vaccine, although they are not required to pay for the test. The rule excludes employees who have religious objections and those who do not come into close contact with other people in their jobs, such as those who work exclusively at home or outdoors.
Under the 1970 Act, the Occupational Safety and Health Administration (OSHA) has the power to issue emergency workplace safety rules, provided they show that workers are in grave danger and that the rule is necessary.
States, corporations, and others have challenged the measure in appellate courts across the country, and a three-judge panel unanimously from the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, ruled in favor of some competitors, blocking the proceeding.
After uniting challenges before the US Court of Appeals for the Sixth Circuit, in Cincinnati, a divided panel of three judges reinstated the procedure.
“The record proves that Covid-19 has continued to spread, shift, kill and prevent the safe return of American workers to their jobs,” Justice Jane B. Strinch wrote to the majority. “To protect workers, the Occupational Safety and Health Administration can and must be able to respond to hazards as they develop.”
Judge Joan Larsen, in dissent, wrote that the administration “likely lacks the power of Congress” to enforce the vaccine or test requirement.
“The mandate is directly aimed at protecting non-vaccinators from their own choices,” she wrote. “Vaccines are freely available, and unvaccinated people may choose to protect themselves at any time.”
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In the Supreme Court case, National Federation of Independent Business v. Department of Labor, No. 21A244, competitors argued that the regulation did not address the workplace issue and therefore bypassed the agency’s statutory authority. “Covid-19 is not an occupational hazard that may be regulated by the Occupational Safety and Health Administration,” attorneys for Ohio and 26 other states told judges in a recent briefing.
They added that agencies seeking to pass regulations on “key matters” with broad economic or political implications must have a clear Congressional mandate.
The second case, Biden v. Missouri, 21A240, relates to a November regulation that requires health care workers in facilities that receive federal funds under Medicare and Medicaid programs to be vaccinated against the coronavirus unless they qualify for a medical or religious exemption . .
States led by Republican officials have challenged the regulation, securing injunctions against it that cover about half of the nation. Two federal appeals courts, in New Orleans and St. Louis, refused to suspend these injunctions while the appeal was progressing.
A third federal appeals court, in Atlanta, sided with the Biden administration. Judges Robin S. wrote a rationale designed to prevent health care workers, whose job is to improve patients’ health, from making them sicker.”
The Biden administration has argued that a federal law gives it broad power to enforce regulations regarding patient health and safety at facilities that receive federal funds. The act gives the Secretary of the Department of Health and Human Services general authority to issue regulations to ensure the “effective administration” of Medicare and Medicaid programs, and portions of statutes relating to various types of facilities generally also authorize the secretary to enforce the requirement to protect patient health and safety.
“It is hard to imagine a more exemplary health and safety situation than the requirement that staff in hospitals, nursing homes, and other medical facilities take the step of effectively preventing transmission of a potentially fatal virus to at-risk patients,” Attorney General Elizabeth Prilugar wrote in a Supreme Court briefing.
In response, Missouri and other state attorneys wrote that “a massive and unprecedented vaccine mandate for health care workers threatens to create a crisis in health care facilities in rural America.”
“The mandate will force millions of workers to choose between losing their jobs or complying with an illegal federal mandate,” they wrote. Had the judge not issued an injunction, they added, “last year’s healthcare heroes would have been out of work this year.”