Biden’s federal vaccine mandate for workplace in trouble at Supreme Court

“This is a pandemic in which nearly a million people have died. It is by far the greatest public health threat this country has faced in the last century,” said Judge Elena Kagan, appointed by President Barack Obama. “More and more people are dying every day…there is nothing else that would do this job better than vigorously motivating people to vaccinate themselves.”

But Judge Clarence Thomas questioned whether the current risk from Covid amounted to the kind of crisis that justified the Occupational Safety and Health Administration using a rapid process to issue an “emergency temporary standard” that would require most workplaces with more than 100 workers to mandate vaccination – or – a mask and state testing.

“A vaccine has been around for some time. Covid has been around for a longer time,” said Thomas, appointed by President George H.W. Bush. “The government could have noticed and commented.”

Of the six Republican-appointed justices, only Chief Justice John Roberts, who was nominated by President George W. Bush, appeared open to allowing the Occupational Safety and Health Administration rule to be applied. But as the arguments progressed, Roberts appeared more skeptical of the Biden administration’s authority to act without specific legislation from Congress. The chief justice said he doubted that the creation of the Occupational Safety and Health Administration in 1970 was considering broad vaccine mandates.

“It was fifty years ago that Congress made a decision,” Roberts said. “I don’t think Covid was in mind. This was more like the Spanish flu than it is today’s problem.”

However, US Attorney Elizabeth Prilugar told the court that the law authorizing the Occupational Safety and Health Administration specifically mentions vaccines and that the need for action is critical.

“We think there are lives lost every day,” Prelugar said.

By the end of the three-and-a-half hour session, the Republican-appointed majority appeared on the Supreme Court The large workplace base would likely prevent, but it tends to side with the Biden administration at least for now in its claim for the power to impose vaccine requirements on health care workers. Both liberal and conservative justices noted that the health care worker rule was not a direct mandate, but was issued as a requirement of federal funding for Medicare and Medicaid.

The ability to order vaccinations for workers who provide these services appears to be an integral part of the authority to enforce other infection control measures, Kagan and Brier said.

“Basically, the only thing you can’t do is kill your patients,” Kagan said. “This appears to be a very basic infection prevention measure.”

Breyer noted that the death toll earlier in the pandemic in nursing homes was staggering.

“We know what happened in Massachusetts and New York in the homes of seniors,” said the longtime Massachusetts resident.

Roberts said Health and Human Services Secretary Xavier Becerra appears to deserve some respect in terms of the kinds of controls his department imposes.

“I am not saying there is no limit there. I don’t know why there is a provision treating an infectious disease on such a scale that goes beyond the Minister’s decision that the mandate in question here is necessary,” said the Chief Justice.

However, lawyers for states opposing the health care mandate said it would unleash chaos in hospitals and small clinics, especially in disadvantaged rural areas, because unvaccinated staff would quit.

“Without the injunction, rural America will face an imminent crisis,” said Missouri Deputy Attorney General Jesus Ossetti. “This mandate will close the doors of many of these rural facilities… it will be devastating.”

Ossetti said the Biden administration has failed to take into account the impact in much of the country. “What might work in Detroit and Houston, might backfire in Memphis, Missouri, or for that matter, El Dorado, Ark,” he said.

Elizabeth Morrell, the Louisiana attorney general, said the health care mandate is not about protecting patients in nursing homes and hospitals, but more about having the Biden administration having every possible tool to increase vaccination levels in the general public.

“It’s an unprecedented bureaucratic step,” she said. “This is targeting people. It is not targeting facilities.”

But nearly all conservative justices have expressed skepticism about the challenge to the health care worker base.

Judge Brett Kavanaugh, appointed by President Donald Trump, noted that it was strange for states to have a fight, when most hospitals and nursing homes did not. “The regulated people are not here to complain about the regulation,” he said.

Thomas questioned whether states have the ability to raise arguments on behalf of their citizens, although states note that they directly provide some of the services covered by the rules.

Judge Amy Connie Barrett, who was also Trump appointed, said the administration’s claims to the power to regulate entities such as hospitals and nursing homes may be stronger than in the case of other providers, such as home health aides.

The spread of the pandemic was evident not only by Sotomayor’s absence from the courtroom, but by the fact that both Muriel and Ohio attorney general Benjamin Flowers argued over the phone.

A court spokesperson said Sotomayor, who was also appointed by Obama, chose to join from her room in the Supreme Court building. She has suffered from diabetes since childhood and has worn a mask in past personal arguments even when other judges have not.

Some of Sotomayor’s early questions on Friday were inaudible in the podcast the court gave to the public to hear arguments. However, it seemed that the other judges and lawyers were able to hear her, and her voice eventually came back.

His office said Flowers was absent from the courtroom after she tested positive for the coronavirus last month.

“His symptoms were exceptionally mild and he has since made a full recovery. The court ordered a PCR test yesterday that detected the virus, which is why he was arguing remotely,” Bethany McCorkel, a spokeswoman for the Ohio Attorney General’s office, said by email.

Flowers told the judges that he “has been given a triple vaccine” and that his recent infection showed that “vaccines do not appear to be very effective in stopping the spread or transmission” of the new species. He also said that the ease with which the virus can catch the virus almost anywhere highlights that the OSHA rule doesn’t really address a work-related issue.

“It’s not really meant to organize a risk in the workplace,” Flowers said. “It’s a risk we all face as soon as we wake up in the morning.”

Kagan made it clear that she did not agree.

“Do you know of any workplaces that haven’t changed themselves drastically in the past two years? … Everyone knows through their normal lives that every workplace has been affected except, you know, a few here and there,” she said.

Kagan also noted that workers have less control over communication at work than in other places. “You have to be out there with a bunch of people you don’t know who might be completely irresponsible,” she said.

Lower courts have issued conflicting rulings on the mandates, which cover tens of millions of workers and are central to President Joe Biden’s efforts to combat the spread of the virus. Judges are likely only to rule on whether the administration can continue to enforce the rules while penalizing the decision on basic regulations — which Republican-led states, corporations and religious groups — are challenging to those courts.

Still, Friday’s judges’ questions and ruling could provide hints about the eventual fate of vaccine mandates — and how the administration will handle their implementation pending a final decision.

“It will leave people at least a little clearer about what the next few weeks may bring,” said attorney Jim Paretti, who represents employers at Littleler Law Firm and is not involved in the cases. But “I am not optimistic that we will have definitive answers.”

The broader mandate, from the Department of Labor’s OSHA division, requires employers with 100 or more employees to ensure their workers are vaccinated or tested weekly and wear masks at work. Another order considered by the court, issued by the Department of Health and Human Services, requires health care facility employees to receive federal funding to obtain a jab.

Both demands, which would affect tens of millions of workers, have been in legal limbo since the Biden administration issued them last year.

The DOL mandate was initially blocked by the Fifth Circuit Court of Appeals, but the Sixth Circuit Court of Appeals lifted the moratorium after being selected By lottery to hear a consolidated version of the various state legal challenges.

In the health care workers case, the Department of Justice is asking the Supreme Court to block two state injunctions issued by the federal district courts in Louisiana and Missouri.

Those who challenge the Occupational Safety and Health Administration’s regulations maintain that the agency lacks the legal authority to enforce them. They point, among other things, to a 1980 Supreme Court decision that declared the Occupational Safety and Health Administration’s ability to issue such temporary emergency standards “narrowly restricted” — which challengers say, the vaccine or test mandate is not.

“Even in OSHA’s rosy view, the mandate imposes vaccine or testing requirements on 84 million Americans… and imposes these requirements on every single industry in the country, at over 264,000 businesses,” Job Creators Network, a trade group among those leading The charge is against the regulations, he said in a Supreme Court filing.

The administration responded that the Occupational Safety and Health Administration (OSHA) is under its authority and that lives are at risk if the authorization is prohibited.

OSHA has correctly identified that [Covid-19] a physically harmful factor and a new danger; that exposure to this deadly virus in the workplace poses a serious risk to unvaccinated employees who are more likely to contract and spread the virus at work and suffer serious health consequences as a result; and that the standard is necessary to protect these employees from the risk of contracting COVID-19 at work.”

Last month, the Biden administration suspended plans to force a vaccine mandate on health care workers, after lower courts froze the measure in more than two dozen Republican-led states. The administration says Medicare and Medicaid patients in covered facilities are among the most vulnerable to the coronavirus and deserve protection from health care providers.

Biden announced the requirement on September 9 as part of a major expansion of the administration’s attempt to increase vaccination rates as it redoubled its efforts to curb the virus. Officials expected the mandate to affect more than 50,000 health facilities and 17 million workers.

After the 8th US Circuit Court of Appeals rejected the Biden administration’s request to lift the temporary freeze on authorizations in 10 states last week, the US Court of Appeals for the Fifth Circuit partially lifted a nationwide ban on CMS authorization.

It can now be enforced in about half the states and is banned in Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Dakota, Utah and Virginia Wyoming.

Lawsuits are also pending in other courts over other Covid-19 vaccination mandates imposed by the Biden administration, including those related to uniformed military, federal workers and federal contractors. Those issues have yet to reach the Supreme Court and were not the focus of discussions on Friday, but Roberts said he considers the issue of vaccines for the armed forces very different.

“The army alone,” he said.

Adriel Bettelheim contributed to this report.

Correction: An earlier version of this story incorrectly described Breyer’s relations with Massachusetts. While he’s been living there for decades, he was born in California.

Leave a Comment