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Supreme Court blocks federal mandate for private workers to vaccinate or test

The justices dropped two rulings late Thursday: One that freezes the mandate for large businesses and another that green-lights enforcement against health care workers

The Supreme Court gutted the Biden administration's pandemic-response strategy Thursday in a split decision that puts a vaccine-or-test mandate for large businesses on ice.

While no judge signed the decision granting a stay of the mandate from the Occupational Safety and Health Administration, Justices Clarence Thomas and Samuel Alito joined a concurring opinion from Justice Neil Gorsuch. Justice Stephen Breyer, Elena Kagan and Sonio Sotomayor took the rare step meanwhile of co-signing their dissent.

OSHA's vaccine-or-test mandate began enforcement on Monday. Large companies were required to start tracking the vaccine statuses of their employees and require those who aren’t yet inoculated to wear masks. The testing component of the mandate was not scheduled to begin enforcement until Feb. 9. 

Along with a separate vaccination mandate for health care, President Joe Biden championed the policies as the key to bringing the country out of a pandemic that has killed over 800,000 Americans. 

Business groups and Republican-led states quickly launched challenges to OSHA’s mandate after it was announced in November. The rule drew so many challenges from across the country that a lottery system was triggered, resulting in an annulment of an early Fifth Circuit Court of Appeals ruling staying the mandate. At the Sixth Circuit Court of Appeals, where the cases were ultimately reassigned, a three-judge panel declined to keep the rule on hold. The high court’s shadow docket was then flooded with challenges leading the justices to schedule an unusual argument session

The conservative justices on the court seemed skeptical of the agency’s authority to enforce the vaccine-or-test mandate when they heard over three hours of arguments last week. Chief Justice John Roberts suggested that OSHA’s rule was too broad while Justice Samuel Alito argued COVID-19 vaccines still posed safety risks despite their approval by the FDA. 

A rarely used exception to an agency’s authority to interpret its own statutes — the major questions doctrine — was brought up by Roberts who was joined by Justices Neil Gorsuch and Brett Kavanaugh. The major questions doctrine limits an agency’s authority when they make rules that go beyond their charge from Congress. The justices implied that Congress did not explicitly say OSHA could mandate vaccines to protect employees so the agency would have to go back to lawmakers to ask them for permission. 

Justices Sonia Sotomayor, Stephen Breyer, and Elena Kagan were indignant during oral arguments as they responded to arguments against what they viewed as an effective strategy to save lives. 

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The business group and states arguing against the mandate claimed the government was just using OSHA as a way to enforce vaccine mandates that didn’t necessarily pose workplace dangers and that the government’s own agencies — namely the Postal Service — couldn’t even comply with the mandates that would pose steep monetary costs and result in worker shortages. 

Some of the justices who appeared skeptical of the vaccine-or-test mandate for large businesses were more sympathetic to a vaccine mandate for health care workers at federally funded businesses. 

The Department of Health and Human Services was also tasked with creating a vaccine mandate by the Biden administration, however, unlike OSHA’s rule, it does not include a testing and masking component. Religious and medical exemptions were offered to HHS’s vaccine mandate but it was still challenged was on hold in 25 states.

States challenging the mandate secured a nationwide injunction but were thwarted when the Fifth Circuit ruled the pause could only apply to the 14 states involved in the lawsuit. Ten additional states then received an injunction from the Eighth Circuit and Texas is also challenging the mandate in its own lawsuit. 

The CMS mandate would require all health care workers at federally funded facilities to have their first shot or submit their exemption request by Jan. 27 and have their second shot or exemption approval by Feb. 28. 

Roberts and Kavanaugh were more amenable to the government’s arguments in this case because the vaccine mandates were closely tied to heath and the hospitals affected by the mandate were not actually the ones fighting the mandate. 

While the states challenging HHS’s mandate said the vaccine requirement was an unprecedented move that would lead to worker shortages, the government argued that vaccines are routinely required for health care workers and that data shows most employees end up complying with mandates instead of losing their jobs. 

Experts said that if the government’s mandates were scrapped it would lead to a patchwork of different policies across the nation. 

“If the OSHA ETS is stayed by the Court, I expect that we would then see states and local jurisdictions begin to enact their own rules more aggressively,” Michelle Strowhiro, a partner at McDermott Will & Emery, said via email following oral arguments. “As with so many employment-related COVID-19 laws, this would create a patchwork of differing and potentially conflicting rules across the states that will be difficult and burdensome for multistate employers to track and comply with.”

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