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Supreme Court blocks vaccine-or-mask mandate for larger employers

But the justices also allowed a similar mandate for health care workers at federally funded facilities

The Supreme Court building is seen at dusk.
The Supreme Court building is seen at dusk. (CQ Roll Call file photo)

The Supreme Court blocked on Thursday a Biden administration requirement that larger businesses require employees to be vaccinated or have a masking and testing policy, but allowed a similar vaccine mandate to go into effect for around 10 million health care workers.

The decisions hinged on whether the administration had the authority to issue the policies to respond to the COVID-19 pandemic, which has resurged as a sharply increased number of Americans are testing positive among the spread of the highly contagious omicron variant.

In a 6-3 order, the justices halted an Occupational Safety and Health Administration rule for larger businesses to either require vaccines or have a masking and testing policy early this year.

And in a 5-4 order, the justices allowed a Centers for Medicare and Medicaid Services vaccination mandate for health care workers at federally funded health care facilities.

“Today’s decision by the Supreme Court to uphold the requirement for health care workers will save lives: the lives of patients who seek care in medical facilities, as well as the lives of doctors, nurses, and others who work there,” President Joe Biden said in a written statement about the Supreme Court action. “We will enforce it.”

In both cases, the challenges to the Biden administration actions were at preliminary stages, when courts were deciding whether to allow the actions to go into effect while the lawsuits moved through the legal system. Thursday’s rulings won’t stop the underlying legal fights over the policies.

In the OSHA case order, which did not state which member of the majority wrote it, the court agreed that the states and businesses that challenged the OSHA mandate are likely to prevail on their argument that the agency overstepped its statutory authority and is otherwise unlawful.

The court concluded that Congress gave the agency the power to regulate occupational dangers but not health care more broadly, and that “requiring the vaccination of 84 million Americans, simply because they work for employers with more than 100 employees, certainly falls in the latter category.”

The inaction of Congress played a large role in the decision. The court wrote that OSHA has never before imposed such a mandate, and neither had 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,” the ruling states.

Justice Neil M. Gorsuch, in a separate concurrence joined by Justices Clarence Thomas and Samuel A. Alito Jr., wrote that the question before the justices “is not how to respond to the pandemic, but who holds the power to do so.”

“The answer is clear: Under the law as it stands today, that power rests with the States and Congress, not OSHA,” Gorsuch wrote. “In saying this much, we do not impugn the intentions behind the agency’s

Justice Steven Breyer, in a dissent joined by the other justices on the liberal wing of the court, Elena Kagan and Sonia Sotomayor, said the majority misapplied legal standards, “acted outside of its competence,” usurped a decision that belongs to federal officials, and stymied the government’s ability to counter the threat COVID-19 poses to workers.

“Today, we are not wise,” Breyer wrote. “In the face of a still-raging pandemic, this Court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed. As disease and death continue to mount, this Court tells the agency that it cannot respond in the most effective way possible.”

On the health care worker vaccine policy, the court’s majority found that Congress has authorized the secretary of Health and Human Services to impose conditions on health care facilities that receive Medicaid and Medicare funding that protect patients.

“The rule thus fits neatly within the language of the statute,” the majority ruling states. “After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm.”

And the ruling points out that vaccination requirements “are a common feature of the provision of health care in America: Healthcare workers around the country are ordinarily required to be vaccinated for dis-
eases such as hepatitis B, influenza, and measles, mumps, and rubella.”

In a pair of dissents, Thomas and Alito, joined by Gorsuch and Justice Amy Coney Barrett, wrote that the Biden administration had not made a strong showing that Congress gave it the authority to compel more than 10 million workers to get vaccinated.

“If Congress had wanted to grant CMS authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly,” Thomas wrote. “It did not.”

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