The Biden administration’s push for mandatory Covid vaccination rules for large employers has crumbled in the aftermath of legal challenges leading to a Supreme Court decision. CNBC reported that the Occupational Safety and Health Administration (OSHA) is “pulling the vaccine and testing rules for businesses effective Wednesday [Jan 26].”
On January 13, the Supreme Court blocked OSHA’s mandate, first published in November under the title COVID-19 Vaccination and Testing: Emergency Temporary Standard (ETS). The conservative-majority Court’s decision stated that the safety agency had “exceeded its authority” by issuing the mandate. The Court did, however, make an allowance for a “vaccine mandate to stand for medical facilities that take Medicare or Medicaid payments.” The Federal Register has already pre-posted a notice of OSHA’s ETS withdrawal. The signed document is slated for official publication on Jan 26.
The creation of OSHA’s ETS has been prompted by the White House’s September 2021 issuance of “New Vaccination Requirement for Employers With 100 or More Employees.” Although the Biden administration is officially withdrawing its measure for large employers in the face of the Court’s ruling, USA Today notes OSHA is “still considering whether the vaccinate-or-test rule should be imposed on a non-emergency basis, which could have a better chance of surviving another legal challenge, if it is more narrowly targeted.” In the meantime, large employers are still asked to voluntarily implement the policies which were listed in the standard.
A blow to Biden's pandemic response
The Supreme Court decision is a blow to President Biden’s plan to have as many Americans receive the vaccine as possible in an effort to slow the spread of the coronavirus. At a State Dining Room address in December, Biden declared: “It’s free. It’s convenient. I promise you, it saves lives. And I, honest to God, believe it’s your patriotic duty.”
While the President desires to have everyone receive a full round of vaccinations, not everyone appreciated the attempt to make it mandatory. The directive to large private employers with 100+ workers offered a difficult choice: ensure all workers are fully vaccinated or instate weekly testing. In addition, the administration issued vaccination requirements for federal employees and military personnel who could otherwise lose their jobs.
The former policy – to mandate all federal workers to get vaccinated – was blocked by a Texas federal court which “issued an injunction against President Biden’s COVID-19 vaccine mandate for the federal workforce.” In his ruling, Judge Jeffrey Brown argued the case was “about whether the president can, with the stroke of a pen and without the input of Congress, require millions of federal employees to undergo a medical procedure as a condition of their employment. That, under the current state of the law as just recently expressed by the Supreme Court, as a bridge too far.”
A brief legal history of OSHA's ETS challenges
The OSHA ETS was highly unpopular with Republican Congresspersons, many of whom co-sponsored immediate legal challenges. On November 12, the Court of Appeals for the Fifth Circuit issued a restraining order to stop the enforcement of the ETS, even as White House Press Secretary Jen Psaki told businesses to comply regardless.
Soon thereafter, Cincinnati’s conservative-leaning Sixth Circuit Court of Appeals took the ball, lifting the stay in a 2-1 ruling on December 17. Explaining the move, Judge Jane Stanch wrote that “OSHA relied on public health data to support its observations that workplaces have a heightened risk of exposure to the dangers of COVID-19 transmission.” That is when matters were elevated to the Supreme Court, which issued a 30-page opinion of its 6-to-3 decision to block the mandate.
The Supreme Court's opinion on the vaccine mandate
Quoting the second paragraph of the Supreme Court’s opinion:
“Many States, businesses, and nonprofit organizations challenged OSHA’s rule in Courts of Appeals across the country. The Fifth Circuit initially entered a stay. But when the cases were consolidated before the Sixth Circuit, that court lifted the stay and allowed OSHA’s rule to take effect. Applicants now seek emergency relief from this Court, arguing that OSHA’s mandate exceeds its statutory authority and is otherwise unlawful. Agreeing that applicants are likely to prevail, we grant their applications and stay the rule.”
On page 5 of the opinion, the Court writes:
“The Sixth Circuit concluded that a stay of the rule was not justified. We disagree.”
“Applicants are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate. Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided. The Secretary has ordered 84 million Americans to either obtain a COVID-19 vaccine or undergo weekly medical testing at their own expense. This is no ‘everyday exercise of federal power.'” The Court continued, “It is instead a significant encroachment into the lives – and health – of a vast number of employees.”
The opinion goes on to quote precedent, noting that Congress must “speak clearly when authorizing an agency to exercise powers of vast economic and political significance” and concluding “There can be little doubt that OSHA’s mandate qualifies as an exercise of such authority. The question, then, is whether the Act plainly authorizes the Secretary’s mandate. It does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures.”
In their dissent (beginning on Page 17), Justices Breyer, Sotomayor, and Kagan disagreed, arguing the following:
“The administrative agency charged with ensuring health and safety in workplaces did what Congress commanded it to: It took action to address COVID-19’s continuing threat in those spaces. The Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (Standard), requiring either vaccination or masking and testing, to protect American workers. The Standard falls within the core of the agency’s mission: to “protect employees” from ‘grave danger’ that comes from ‘new hazards’ or exposure to harmful agents. OSHA estimates – and there is no ground for disputing – that the Standard will saves over 6,500 lives and prevent over 250,000 hospitalizations in six months’ time.”
Biden's response to the Supreme Court decision
President Biden issued a public statement on January 13, expressing displeasure with the overall opinion while writing that the Supreme Court’s decision “to uphold the requirement for health care workers will save lives.”
“At the same time, I am disappointed that the Supreme Court has chosen to block common-sense life-saving requirements for employees at large businesses that were grounded squarely in both science and the law,” Biden wrote. “This emergency standard allowed employers to require vaccinations or to permit workers to refuse to be vaccinated, so long as they were tested once a week and wore a mask at work: a very modest burden.”
The President went on to concede that states and individual employers are now left to decide how to best proceed, and he advocated for “business leaders to immediately join those who have already stepped up – including one third of Fortune 100 companies – and institute vaccination requirements to protect their workers, customers, and communities.”