The Supreme Court will hear arguments Friday on the legality of two initiatives at the heart of the Biden administration’s efforts to address coronavirus in the workplace through vaccine mandates.
The challengers – states led by Republican officials, businesses, religious groups and others – say Congress has not authorized the measures, adding that they are unnecessary and in some way counterproductive.
The administration says workplace health and safety laws have given it broad authority to take bold action in the face of a deadly pandemic.
The broader of the two measures, targeting companies with 100 or more employees, would impose a vaccination or testing mandate on more than 84 million workers. The administration estimated that the rule would get 22 million people vaccinated and prevent 250,000 hospitalizations.
The other measure requires workers in hospitals and other health care facilities that participate in the Medicare and Medicaid programs to be vaccinated against the coronavirus. The requirement would affect more than 17 million workers, the administration said, and “would save hundreds or even thousands of lives each month.”
The Supreme Court remains closed to the public, but the magistrates are hearing the arguments in person, with the exception of Magistrate Sonia Sotomayor, who participated remotely from her chamber. The court is providing a live audio feed on its website.
All judges are fully vaccinated and have received a booster shot, a court spokeswoman said.
The Supreme Court has repeatedly upheld state vaccine mandates in a variety of settings in the face of constitutional challenges. The cases before the court are different, as they mainly raise the question of whether Congress has authorized the executive branch to institute the requirements.
The answer will depend primarily on the language of the relevant statutes and whether the administration followed the proper procedures when 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 can give their workers the option to get tested weekly instead of receiving the vaccine, although they are not required to pay for the test. The rule makes an exception for employees with religious objections and those who do not come into close contact with other people at work, such as those who work at home or exclusively outdoors.
Under a 1970 law, OSHA has the authority to issue emergency rules for workplace safety, provided it can show that workers are exposed to serious danger and that the rule is necessary.
States, businesses, and others challenged the measure in appellate courts across the country, and a unanimous three-judge panel of the United States Court of Appeals for the Fifth Circuit in New Orleans ruled in favor of some of the challengers, blocking the measure.
After the challenges were consolidated before the United States Court of Appeals for the Sixth Circuit in Cincinnati, a divided panel of three judges reinstated the measure.
“The record establishes that Covid-19 has continued to spread, mutating, killing and blocking the safe return of American workers to their jobs,” Judge Jane B. Stranch wrote to the majority. “To protect workers, OSHA can and should be able to respond to hazards as they evolve.”
Disagreeing, Judge Joan L. Larsen wrote that the administration “probably lacks the authority of Congress” to enforce the requirement for vaccinations or testing.
“The mandate is aimed squarely at protecting the unvaccinated from their own decisions,” he wrote. “Vaccines are freely available and unvaccinated people can choose to protect themselves at any time.”
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In the case of the Supreme Court, National Federation of Independent Companies v. Department of Labor, No. 21A244, the challengers argued that the regulation did not address a workplace issue and therefore exceeded the agency’s legal authority. “Covid-19 is not an occupational hazard that OSHA can regulate,” attorneys from Ohio and 26 other states told judges in a recent report.
They added that agencies seeking to issue regulations on “important issues” with broad economic or political implications must have clear authorization from Congress.
The second case, Biden v. Missouri, No. 21A240, refers to a regulation issued in November that requires healthcare workers at facilities that receive federal money under the Medicare and Medicaid programs to be vaccinated against the coronavirus unless they qualify for a medical exemption or religious. .
States led by Republican officials challenged the regulation, obtaining injunctions against them that cover about half the nation. Two federal appeals courts, in New Orleans and St. Louis, refused to suspend those injunctions while appeals progressed.
A third federal appeals court, in Atlanta, sided with the Biden administration. “Healthcare workers have long been required to obtain vaccinations for infectious diseases, such as measles, rubella, mumps, and others,” wrote Justices Robin S. Rosenbaum and Jill A. Pryor for a divided panel of three. judges, “because the required vaccination is a common sense measure designed to prevent health workers, whose job is to improve the health of patients, make them sicker.”
The Biden administration argued that a federal statute gave it broad authority to impose regulations on the health and safety of patients in facilities that receive federal money. The statute gives the secretary of the Department of Health and Human Services general power to issue regulations to ensure the “efficient administration” of the Medicare and Medicaid programs, and parts of the statute relating to various types of facilities generally also authorize the secretary to impose requirements to protect the health and safety of patients.
“It is difficult to imagine a more paradigmatic health and safety condition than the requirement that workers in hospitals, nursing homes and other medical facilities take the step that more effectively prevents the transmission of a deadly virus to vulnerable patients,” Prosecutor General Elizabeth B. Prelogar wrote in a Supreme Court brief.
In response, attorneys for Missouri and other states wrote that “the unprecedented and widespread vaccine mandate for healthcare workers threatens to create a crisis in healthcare facilities in rural America.”
“The mandate would force millions of workers to choose between losing their jobs or complying with an illegal federal mandate,” they wrote. If a judge had not issued a court order, they added, “last year’s health care heroes would have become this year’s unemployed.”