Supreme Court blocks Biden’s vaccine-or-test mandate for employers

The Supreme Court on Thursday temporarily blocked the Biden administration’s vaccine-or-test mandate for large employers, but allowed a vaccine-only mandate for health providers at federally funded facilities.  

The high court ruled 6-3 against the Occupational Safety and Health Administration’s (OSHA) employer mandate, blocking it from taking effect while other legal challenges play out.   

The court ruled 5-4 to keep the health care worker mandate, with Chief Justice Roberts and Justice Brett Kavanaugh joining the more liberal Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.   

The Biden administration has argued that both policies are necessary in order to get as many people vaccinated against COVID-19 as possible. President Biden has indicated he is running out of patience with Americans who refuse to get vaccinated against the coronavirus and that the rules were meant to force the issue in order to make workplaces safer. 

The employer policy would have required companies with at least 100 workers to mandate all employees be vaccinated or provide weekly negative coronavirus test results and wear face coverings to work on-site.  

The White House said the order covered about 17 million health care workers, while the requirement on large companies would have covered more than 80 million employees, about two-thirds of the American workforce. 

While lower courts were split, the conservative Supreme Court majority ruled the employer vaccine-or-test mandate was an overreach. The justices said the challengers, a coalition of businesses and 27 Republican-led states, were likely to succeed on the merits.  

“The Secretary has ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense,” the justices wrote. “It is instead a significant encroachment into the Lives—and health—of a vast number of employees. … There can be little doubt that OSHA’s mandate qualifies as an exercise of such authority.”

At the heart of the challenges was OSHA’s authority to issue emergency temporary standards, which bypass the normal regulatory process and take effect immediately if the Labor secretary deems that employees are “exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful.”  

The majority said OSHA’s standards are meant to regulate workplaces only, and COVID-19 is a public health issue, not just a workplace one. 

“Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather,” the justices wrote.  

Breyer, in a dissenting opinion joined by Sotomayor and Kagan, blasted the conservative majority for stepping “outside of its competence and without legal basis” to stymie the administration’s pandemic mitigation effort. 

The liberal justices argued that the 1970 law that established OSHA clearly authorized the agency’s move. Drawing​ on the statute’s language, they wrote that the virus poses a “grave danger” to employees and that because the disease spreads in shared indoor spaces, “it presents heightened dangers in most workplaces.” 

“It is perverse, given these circumstances, to read the Act’s grant of emergency powers in the way the majority does — as constraining OSHA from addressing one of the gravest workplace hazards in the agency’s history,” Breyer wrote. 

“The Standard protects untold numbers of employees from a danger especially prevalent in workplace conditions,” he continued. “It lies at the core of OSHA’s authority. It is part of what the agency was built for.” 

In a separate unsigned ruling, the court let stand a vaccine mandate for employees at health care facilities that receive federal funding. Four of the court’s more conservative justices dissented. 

The policy, issued by the Department of Health and Human Services (HHS), mandates vaccines for the roughly 17 million health workers at hospitals across the country that receive funding through Medicare and Medicaid. It provides for narrow exemptions on religious and medical grounds. 

The practical effect of the ruling was to reinstate the federal health worker vaccine mandate in roughly half the country, where lower federal courts had blocked it while a challenge by separate groups of GOP-led states plays out.   

The majority ruled that the vaccine requirement fell squarely within the HHS secretary’s authority, as delegated by Congress.  

“Congress has authorized the Secretary to impose conditions on the receipt of Medicaid and Medicare funds that ‘the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services,’” the court wrote, citing a federal statute.

The secretary’s determination that a COVID–19 vaccine mandate would “substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients” thus “fits neatly within the language of the statute,” they wrote.  

Justices Clarence Thomas and Samuel Alito wrote separate dissenting opinions. Thomas and Alito were joined by fellow conservative Justices Neil Gorsuch and Amy Coney Barrett in dissent.

In their opinions, both Thomas and Alito said they would have denied the Biden administration’s request, making clear their view the government failed to establish that it has adequate legal justification for the mandate.  

Alito also faulted the administration for bypassing normal rulemaking procedures, which require a weighing of public reaction and other procedural safeguards.  

“Today’s decision will ripple through administrative agencies’ future decisionmaking. The Executive Branch already touches nearly every aspect of Americans’ lives,” Alito wrote. “In concluding that CMS had good cause to avoid notice-and-comment rulemaking, the Court shifts the presumption against compliance with procedural strictures from the unelected agency to the people they regulate.”

Updated at 3:39 p.m.