US Supreme Court Blocks OSHA Vaccine Mandate
By Elizabeth Redden
January 14, 2022
The Supreme Court on Thursday blocked an Occupational Safety and Health Administration rule mandating that large employers require employees get vaccinated against COVID-19 or undergo weekly testing.
The court allowed a separate rule mandating vaccination for employees of health-care facilities receiving Medicare and Medicaid funding to go into effect.
In blocking the OSHA rule, which would have applied to colleges and other workplaces with 100 or more employees, and which would have affected an estimated 84 million workers, a six-member majority of the court found that the states, businesses and nonprofit groups that sued were likely to prevail in their arguments that OSHA exceeded its authority as set out in the Occupational Safety and Health Act of 1970.
The majority said in an unsigned opinion that the act empowers the secretary of labor “to set workplace safety standards, not broad public health measures.”
“Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most,” the court’s opinion states. “COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.”
The three liberal justices on the court dissented, arguing the court acted “outside of its competence and without legal basis” in displacing the judgments of OSHA officials.
“In the face of a still-raging pandemic, this Court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed,” Justices Stephen G. Breyer, Elena Kagan and Sonia Sotomayor wrote in a dissenting opinion. “As disease and death continue to mount, this Court tells the agency that it cannot respond in the most effective way possible. Without legal basis, the Court usurps a decision that rightfully belongs to others. It undercuts the capacity of the responsible federal officials, acting well within the scope of their authority, to protect American workers from grave danger.”
Businesses are whipsawed again as the Supreme Court blocks OSHA’s vaccine mandate.
A requirement that large companies mandate vaccines or weekly testing for workers was blocked by the Supreme Court on Thursday, leaving the often fraught choice up to employers.
Parts of the rule, which the Occupational Safety and Health Administration issued in November, had been scheduled to take effect on Monday.
Vaccine mandates have been a controversial approach to battling the pandemic. United Airlines and Tyson Foods are among the major companies that already have such requirements, but many others are waiting for legal battles to be resolved.
Walmart, Amazon and JPMorgan Chase, three of the largest private employers in the United States, have yet to issue broad requirements for their staff. A spokesman for Macy’s, which began to request the vaccination status of its employees this month, said the retailer was “evaluating this late breaking development.”
Some companies with vaccine mandates said keeping those policies might become more difficult in light of the Supreme Court’s ruling.
Franz Spielvogel, who owns Laughing Planet, a chain of fast casual restaurants with more than 200 employees, required his employees to be fully vaccinated or submit to weekly testing by mid-January and does not plan to change that rule. But the Supreme Court’s decision frustrated him, he said, because he no longer has federal cover to justify his policy.
“It turns into a bit of a head scratcher for us,” Mr. Spielvogel said, though the recent surge of Covid-19 cases has made him feel more strongly about the need for a mandate. “As a business owner and as an employer and as someone dealing with the public, I want my customers to know they’re walking into a safe place.”
In a November poll of 543 companies by the consulting firm Willis Towers Watson, 57 percent said they either required or planned to require Covid-19 vaccinations. That included 32 percent that planned to mandate vaccines only if the OSHA rule takes effect. Seven percent said they planned to carry it out regardless of the outcome. A little more than 70 percent of the adult U.S. population is fully vaccinated.
“Our recent survey suggests that many more employers would have pursued vaccine mandates if the rule was left in place,” Dr. Jeffrey Levin-Scherz, who leads the consulting firm’s clinical response to the coronavirus, said in a statement.
Some companies have been concerned about losing employees when workers are already scarce, and although firms with mandates have said those concerns have largely not come to fruition, a national requirement could have further eased those concerns.
The National Retail Federation, which was one of several trade groups to sue the administration over the mandate, called the Supreme Court’s action a “significant victory for employers.” The organization said it “urges the Biden administration to discard this unlawful mandate and instead work with employers, employees and public health experts on practical ways to increase vaccination rates and mitigate the spread of the virus in 2022.”
Companies have been preparing for months for the mandate, and many may still go forward with their policies, said Douglas Brayley, an employment lawyer at Ropes & Gray. He noted that the Supreme Court did not say anything against employer vaccination mandates.
Some local and state laws still require employers to mandate vaccines or weekly testing. New York City, for example, has a more stringent rule than the federal government’s, requiring all on-site workers to be vaccinated. The Supreme Court has repeatedly upheld state vaccine mandates, and it did not limit the ability of employers to create their own requirements.
But other states have laws blocking mask and vaccine mandates, which the federal rule would have pre-empted. With the Biden administration’s rule blocked, many employers in those states will be unable to require vaccines, said David Michaels, an epidemiologist and a professor at George Washington University and a former OSHA administrator.
“This decision will be an excuse for those employers who care less about their employees to return to business as usual,” Dr. Michaels said. He added that the decision could exacerbate the divide between white-collar workers who can remain at home and workers who have to conduct business in person as Covid cases surge.
The Supreme Court’s decision, which described OSHA’s rule as “a blunt instrument,” left open the possibility that the agency could issue a revised rule that is targeted at certain types of workplaces or is more clearly within its purview, such as requiring improved ventilation and personal protective equipment, Dr. Michaels said. It could also follow a more traditional rule-making process rather than the emergency one it used, though that could take years.
In the meantime, the court’s ruling could encourage states and local governments to go forward with their own requirements. That could create further complications for national employers.
“Local jurisdictions are going to look more carefully at the OSHA mandate and determine whether to adopt something similar,” said Domenique Camacho Moran, a partner in the labor and employment practice at the law firm Farrell Fritz.
United Airlines said this week that while 3,000 of its employees had Covid-19, none of its vaccinated employees were currently hospitalized. Since its vaccine policy went into effect, the airline said, its employee hospitalization rate had dropped significantly below the rate for the U.S. population.
Dr. Megan Ranney, an emergency physician and the associate dean at Brown University’s School of Public Health, called the ruling a “tremendous blow” to national efforts to battle the pandemic.
“There is 30 percent of the movable adult population” that isn’t vaccinated for which a mandate may have made a difference, she said. “Now, the mandates are not going to be in place, and so I worry that those folks are going to continue to not get vaccinated — unless an awful lot of employers decide that this is in their best interest to put in place.”
Sapna Maheshwari contributed reporting.
Businesses react to ruling against Biden vaccine mandate
By DAVID KOENIG
President Joe Biden speaks about the government's COVID-19 response, in the South Court Auditorium in the Eisenhower Executive Office Building on the White House Campus in Washington, Thursday, Jan. 13, 2022. (AP Photo/Andrew Harnik)
For companies that were waiting to hear from the U.S. Supreme Court before deciding whether to require vaccinations or regular coronavirus testing for workers, the next move is up to them.
Many large corporations were silent on Thursday’s ruling by the high court to block a requirement that workers at businesses with at least 100 employees be fully vaccinated or else test regularly for COVID-19 and wear a mask on the job.
Target’s response was typical: The big retailer said it wanted to review the decision and “how it will impact our team and business.”
The Biden administration argues that nothing in federal law prevents private businesses from imposing their own vaccine requirements. However, companies could run into state bans on vaccine mandates in Republican-controlled states. And relatively few businesses enacted their own rules ahead of the Occupational Safety and Health Administration requirement, raising doubt that there will be rush for them now.
In legal terms, the Supreme Court’s conservative majority said the OSHA lacked authority to impose such a mandate on big companies. The court, however, let stand a vaccination requirement for most health care workers.
The National Retail Federation, the nation’s largest retail trade organization and one of the groups that challenged the OSHA action, called the court’s decision “a significant victory for employers.” It complained that OSHA acted without first allowing public comments, although administration officials met with many business and labor groups before issuing the rule.
Chris Spear, the president of the American Trucking Associations, another of the groups that fought the OSHA rule, said it “would interfere with individuals’ private health care decisions.”
Karen Harned, an official with the National Federation of Independent Business, said that as small businesses try to recover from nearly two years of pandemic, “the last thing they need is a mandate that would cause more business challenges.”
But mandate supporters called it a matter of safety for employees and customers.
Dan Simons, co-owner of the Founding Farmers chain of restaurants in the Washington area, said vaccine mandates are “common sense.” He requires his 1,000 employees to be fully vaccinated; those who request an exemption must wear a mask and submit weekly COVID test results.
“If your priority is the economy, or your own health, or the health of others, you would agree with my approach,” Simons said.
Administration officials believe that even though the OSHA rule has been blocked, it drove millions of people to get vaccinated. But companies that used mandates to achieve relatively high vaccination rates may decide that they have accomplished enough.
Ford Motor Co. said it was “encouraged by the 88% of U.S. salaried employees who are already vaccinated.” The car maker said it would review the court decision to see if it needs to change a requirement that most U.S. salaried workers get the shots.
Labor advocates were dismayed by the ruling.
“This decision will have no impact on most professional and white collar workers, but it will endanger millions of frontline workers who risk their lives daily and who are least able to protect themselves,” said David Michaels, who led OSHA during the Obama administration and now teaches at the George Washington University’s School of Public Health.
For their part, labor unions had been divided all along about Biden’s attempt to create a vaccine mandate, with many nurses and teachers groups in favor, but many police and fire unions opposed. Some unions wanted the right to bargain over the issue with companies.
The United Auto Workers, which encourages workers to get vaccinated, said the decision won’t change safety protocols such as face masks, temperature checks and distancing when possible for more than 150,000 union members at General Motors, Ford and Stellantis factories.
The Service Employees International Union, which represents more than 2 million service industry workers, said the Supreme Court’s decision is a relief for health care workers but leaves others without critical protections.
“In blocking the vaccine-or-test rule for large employers, the court has placed millions of other essential workers further at risk, caving to corporations that are trying to rig the rules against workers permanently,” the union said.
The union called on Congress and states to pass laws requiring vaccinations, masks and paid sick leave. Workers also need better access to testing and protective equipment, the union said.
The United Food and Commercial Workers International Union, the largest union for grocery workers and meatpacking plants, said that the Supreme Court decision fails to recognize the “extreme health risks” America’s front-line food and retail workers face on the job.
“Frontline workers need to be protected and this decision needlessly ignores that there was a better way to address this issue without negating this mandate,” said Marc Perrone, president of the UFCW International in a statement.
Meanwhile, employers have been split on what to do with their unvaccinated workers. Among 543 U.S. companies surveyed in November by insurance broker and consulting firm Willis Towers Watson, fewer than one in five required vaccination. Two-thirds had no plans to require the shots unless the courts upheld the OSHA requirement.
Jeff Levin-Scherz, an executive in the firm’s health practice, said most companies with mandates will keep them because they are working. He said nothing short of a mandate can get vaccination rates to 90%, and “you really need a very high level of vaccination to prevent community outbreaks.”
United Airlines was one of the first major employers to announce a mandate, back in August. CEO Scott Kirby has said that 99% of United employees either got vaccinated or submitted a request for exemption on medical or religious grounds.
United declined to comment Thursday, but in earlier comments Kirby has sounded committed to the mandate for his employees because “it was the right thing to do for safety.”
Airlines fall under a separate Biden order that required federal contractors to get their workers vaccinated. That requirement was not part of Thursday’s Supreme Court ruling, but it has been tied up separately since early December, when a federal district judge in Georgia issued a preliminary injunction barring enforcement of the mandate.
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AP Staff Writers Anne D’Innocenzio in New York, Paul Wiseman in Washington and Dee-Ann Durbin and Tom Krisher in Detroit contributed to this report.
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Kevin Reed
WSWS.ORG
On Thursday afternoon, the Supreme Court of the United States struck down the Biden administration’s policy requiring large employers to make COVID-19 vaccines mandatory among workers. While every region of the country is facing an unprecedented surge of the Omicron variant, the decision impacts approximately 84 million workers, more than 20 million of whom are unvaccinated.
In a 6-3 vote, the high court overturned the decision of a three-judge panel of the Sixth Circuit Court of Appeals in Cincinnati that ruled in December that the Biden administration’s large employer vaccine mandate was lawful. The original lawsuit was filed by the National Federation of Independent Businesses, an organization that claimed the vaccine mandate “restricts the freedom small business owners depend on to run their businesses and is a clear example of administrative overreach.”
The judges in the majority were Chief Justice John G. Roberts Jr. and Justices Brett M. Kavanaugh, Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Amy Coney Barrett. Those in opposition to the ruling were Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
In its nine-page decision, the right-wing majority ruled that the Occupational Health and Safety Administration (OSHA)—the federal agency that published the new rules for large businesses in November and is responsible for enforcing the policy—does not have authorization from Congress to impose the mandate.
The specifics of the Biden proposal entitled “COVID–19 Vaccination and Testing; Emergency Temporary Standard” would have mandated employers to require employees to get vaccinated or wear masks each day and get tested for COVID-19 weekly at their own expense. The rules had provisions for exceptions based on employee religious objections and for workers who do not have indoor close contact with other employees.
The six justices stated that the OSHA rules are not “everyday exercise of federal power” but instead are “a significant encroachment into the lives—and health—of a vast number of employees.” In siding with business owners and against the public health interest, the court argued that COVID-19 does not qualify as an occupational hazard and therefore falls outside the responsibility of OSHA to regulate “work-related dangers.”
Significantly, the court majority brief states, “COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.”
By blocking the Biden administration’s vaccine policy—even after 63 million Americans have contracted COVID-19 and more than 843,000 have died from the virus—the Supreme Court has endorsed in legal terms the standpoint of the corporations and Wall Street that the pandemic must be allowed to spread among the working population without restrictions and that the public must “learn to live” with the pandemic.
As a matter of fact, the Supreme Court decision barely even refers to the devastating impact of the pandemic on society as a whole. With its narrow focus on Congressional authorization and jurisdiction, the court expresses indifference to the OSHA projection that the mandate “will save over 6,500 lives and prevent hundreds of thousands of hospitalizations.” The court majority responded to these life-and-death matters with, “It is not our role to weigh such tradeoffs.”
The court also justified its decision by arguing that OSHA lacked a historical precedent for “a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace.” For the Supreme Court majority, it matters little that OSHA was established by Congress in 1971 and that the COVID-19 virus represents an unprecedented global public health crisis with no historical parallel, with the possible exception of the Great Influenza epidemic of 1918-20 that killed an estimated 20-50 million people worldwide.
In contrast to the reactionary Supreme Court ruling, the Sixth Circuit Court of Appeals decision of December 17 upholding Biden’s OSHA rules begins with the following, “The COVID-19 pandemic has wreaked havoc across America, leading to the loss of over 800,000 lives, shutting down workplaces and jobs across the country, and threatening our economy.”
The claim by the Supreme Court majority that the coronavirus is not an occupational hazard is blatantly false. Transmission of COVID-19 in the workplace is a primary cause of the spread of the virus and has been the subject of significant studies and research. For example, a study conducted in May 2020 by Harvard T.H. Chan School of Public Health showed that workplace transmission played a substantial role in the spread of the disease during the early stages of outbreaks in six Asian countries. Meanwhile, it showed that the majority of work-related cases occurred in occupations other than health care.
In October 2020, a report by the Century Foundation entitled “Halting Workplace COVID-19 Transmission: An Urgent Proposal to Protect American Workers” said that, while the initial wave of the pandemic hit health care and nursing home staff, “tens of thousands of other workers—emergency responders, corrections officers, transit workers, meat and poultry processing workers, farm workers, grocery store and warehouse workers, and many others—have been sickened and hundreds more of them have died.”
In addition to its decision on the large business vaccine mandate, the Supreme Court upheld the OSHA rules requiring health care workers at medical facilities that participate in the federally funded Medicare and Medicaid programs to be vaccinated. The implementation of this aspect of Biden’s policy will affect more than 17 million health care workers and would “save hundreds or even thousands of lives each month.”
In responding to the legal defeat, Biden appealed to the very same businesses which were behind the campaign to block the vaccine mandate. “The Court has ruled that my administration cannot use the authority granted to it by Congress to require this measure. … I call on 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.”
