Labor Department vows to protect workers from Covid after Supreme Court blocks business vaccine mandate
The Supreme Court blocked President Biden's vaccine and testing rules for businesses, but also said the federal government can implement Covid-related safety measures in high-risk workplaces.
Unions are calling for the Labor Department to implement improved ventilation, physical distancing and masking in workplaces.
Some states and cities have their own specific rules in place that are not affected by the court's decision.
The Supreme Court blocked President Biden's vaccine and testing rules for businesses, but also said the federal government can implement Covid-related safety measures in high-risk workplaces.
Unions are calling for the Labor Department to implement improved ventilation, physical distancing and masking in workplaces.
Some states and cities have their own specific rules in place that are not affected by the court's decision.
© Provided by CNBC US Secretary of Labor Marty Walsh speaks about Labor Unions during an event in the East Room of the White House September 8, 2021, in Washington, DC.
The Labor Department has vowed to use its authority to protect workers from Covid, after the Supreme Court blocked the Biden administration's vaccine and testing rules for private businesses.
Labor Secretary Marty Walsh, in a statement after the high court's ruling, said the Occupational and Safety Administration is evaluating its options to enforce safety standards against Covid in the workplace.
"Regardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers," Walsh said on Thursday.
OSHA still has general authority requiring employers to maintain a safe workplace and can fine businesses if they fail to do so. The agency has investigated thousands of Covid complaints with millions of dollars in proposed fines since the pandemic began.
The Supreme Court's conservative majority, in its 6-3 ruling, called the federal mandate a "blunt instrument" that "draws no distinctions based on industry or risk of exposure to Covid-19."
However, the high court said OSHA does have the authority to regulate specific workplaces where workers face a heighted threat from Covid.
"Where the virus poses a special danger because of the particular features of an employee's job or workplace, targeted regulations are plainly permissible," the court wrote in an unsigned opinion.
The court said it has "no doubt" that OSHA can implement safety measures to protect workers from Covid in particularly cramped or crowded environments.
In other words, OSHA could tailor a new regulation that targets high-risk industries, such as meatpacking, with safety measures that do not include the controversial vaccine rule, according Jordan Barab, deputy assistant secretary of OSHA during the Obama administration.
"There are a number of criteria OSHA could use to make it more risk based that would probably pass Supreme Court muster," Barab told CNBC on Friday.
Labor unions are already pushing in that direction. The AFL-CIO, the largest federation of unions in the U.S., called on the White House to issue a new workplace safety standard that would require improved ventilation, physical distancing, masking and paid leave for all workers
"While we are disappointed by the decision, the court's majority clearly acknowledged OSHA's authority to protect workers who face heightened risks of contracting Covid-19 in the workplace," AFL-CIO President Liz Shuler said in a statement. "OSHA's responsibility to provide safe working conditions remains firmly in place."
The United Food and Commercial Workers union, which represents 1.3 million people primarily in meatpacking and food processing, wants the White House and businesses to provide free personal protective equipment in addition to the measures the AFL-CIO is demanding.
The Service Employees International Union, which represents 2 million workers, is pushing for Congress and the states to step in and implement safety measures where the White House failed, including universal vaccination and broader access to testing.
"In light of the Supreme Court's callous abandonment of millions of essential workers, Congress and states must act with urgency to require employers to protect all workers," SEIU President Mary Kay Henry said in a statement.
More than 20 states operate their own workplace-safety plans, and some have implemented Covid safety requirements. California, for example, requires all employees and customers to wear masks indoors. Businesses must also implement Covid prevention plans, investigate outbreaks and notify employees within a day, and offer free testing to fully vaccinated employees among other measures.
New York City has implemented a vaccine mandate for all private businesses. Mayor Eric Adams made it clear on Friday the city's rules are still in place.
Chicago requires everyone older than 5 years of age to show proof of vaccination to eat indoors at restaurants, go to the gym, or enter indoor entertainment venues where food is served. Los Angeles has similar rules.
President Joe Biden, for his part, called on companies to voluntarily implement the vaccine and testing rules. A number of large companies – including Citigroup, Nike and Columbia Sportswear – have said they would begin firing unvaccinated workers.
"The court has ruled that my administration cannot use the authority granted to it by Congress to require this measure," Biden said. "But that does not stop me from using my voice as president to advocate for employers to do the right thing to protect Americans' health and economy."
However, other companies are already abandoning rules. General Electric, which has 174,000 employees, said on Friday that it suspended the vaccine and testing rules.
The Labor Department has vowed to use its authority to protect workers from Covid, after the Supreme Court blocked the Biden administration's vaccine and testing rules for private businesses.
Labor Secretary Marty Walsh, in a statement after the high court's ruling, said the Occupational and Safety Administration is evaluating its options to enforce safety standards against Covid in the workplace.
"Regardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers," Walsh said on Thursday.
OSHA still has general authority requiring employers to maintain a safe workplace and can fine businesses if they fail to do so. The agency has investigated thousands of Covid complaints with millions of dollars in proposed fines since the pandemic began.
The Supreme Court's conservative majority, in its 6-3 ruling, called the federal mandate a "blunt instrument" that "draws no distinctions based on industry or risk of exposure to Covid-19."
However, the high court said OSHA does have the authority to regulate specific workplaces where workers face a heighted threat from Covid.
"Where the virus poses a special danger because of the particular features of an employee's job or workplace, targeted regulations are plainly permissible," the court wrote in an unsigned opinion.
The court said it has "no doubt" that OSHA can implement safety measures to protect workers from Covid in particularly cramped or crowded environments.
In other words, OSHA could tailor a new regulation that targets high-risk industries, such as meatpacking, with safety measures that do not include the controversial vaccine rule, according Jordan Barab, deputy assistant secretary of OSHA during the Obama administration.
"There are a number of criteria OSHA could use to make it more risk based that would probably pass Supreme Court muster," Barab told CNBC on Friday.
Labor unions are already pushing in that direction. The AFL-CIO, the largest federation of unions in the U.S., called on the White House to issue a new workplace safety standard that would require improved ventilation, physical distancing, masking and paid leave for all workers
"While we are disappointed by the decision, the court's majority clearly acknowledged OSHA's authority to protect workers who face heightened risks of contracting Covid-19 in the workplace," AFL-CIO President Liz Shuler said in a statement. "OSHA's responsibility to provide safe working conditions remains firmly in place."
The United Food and Commercial Workers union, which represents 1.3 million people primarily in meatpacking and food processing, wants the White House and businesses to provide free personal protective equipment in addition to the measures the AFL-CIO is demanding.
The Service Employees International Union, which represents 2 million workers, is pushing for Congress and the states to step in and implement safety measures where the White House failed, including universal vaccination and broader access to testing.
"In light of the Supreme Court's callous abandonment of millions of essential workers, Congress and states must act with urgency to require employers to protect all workers," SEIU President Mary Kay Henry said in a statement.
More than 20 states operate their own workplace-safety plans, and some have implemented Covid safety requirements. California, for example, requires all employees and customers to wear masks indoors. Businesses must also implement Covid prevention plans, investigate outbreaks and notify employees within a day, and offer free testing to fully vaccinated employees among other measures.
New York City has implemented a vaccine mandate for all private businesses. Mayor Eric Adams made it clear on Friday the city's rules are still in place.
Chicago requires everyone older than 5 years of age to show proof of vaccination to eat indoors at restaurants, go to the gym, or enter indoor entertainment venues where food is served. Los Angeles has similar rules.
President Joe Biden, for his part, called on companies to voluntarily implement the vaccine and testing rules. A number of large companies – including Citigroup, Nike and Columbia Sportswear – have said they would begin firing unvaccinated workers.
"The court has ruled that my administration cannot use the authority granted to it by Congress to require this measure," Biden said. "But that does not stop me from using my voice as president to advocate for employers to do the right thing to protect Americans' health and economy."
However, other companies are already abandoning rules. General Electric, which has 174,000 employees, said on Friday that it suspended the vaccine and testing rules.
Businesses react to ruling against Biden vaccine mandate
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. 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.
Among 543 U.S. companies surveyed in November by insurance broker and consulting firm Willis Towers Watson, employers were split on what to do with their unvaccinated workers. 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.
“I would expect many federal contractors are going to wait and see because they don’t want to implement something if they don’t have to,” said Christopher Slottee, a commercial law attorney in Anchorage, Alaska.
___
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.
___
This story was first published on January 13, 2022. It was updated on January 15, 2022 to correct the specialty of Chris Slottee. He is a commercial law attorney, not an employment attorney.
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. 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.
Among 543 U.S. companies surveyed in November by insurance broker and consulting firm Willis Towers Watson, employers were split on what to do with their unvaccinated workers. 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.
“I would expect many federal contractors are going to wait and see because they don’t want to implement something if they don’t have to,” said Christopher Slottee, a commercial law attorney in Anchorage, Alaska.
___
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.
___
This story was first published on January 13, 2022. It was updated on January 15, 2022 to correct the specialty of Chris Slottee. He is a commercial law attorney, not an employment attorney.
WASHINGTON (AP) — Concerned but not giving up, President Joe Biden is anxiously pushing ahead to prod people to get COVID-19 shots after the Supreme Court put a halt to the administration’s sweeping vaccinate-or-test plan for large employers.
At a time when hospitals are being overrun and record numbers of people are getting infected with the omicron variant, the administration hopes states and companies will order their own vaccinate-or-test requirements. And if the presidential “bully pulpit” still counts for persuasion, Biden intends to use it.
While some in the business community cheered the defeat of the mandate, Biden insisted the administration effort has not been for naught. The high court’s ruling on Thursday “does not stop me from using my voice as president to advocate for employers to do the right thing to protect Americans’ health and economy,” he said.
The court’s conservative majority all-but-struck down the Occupational Safety and Health Administration’s requirement that employers with 100 or more employees require their workers to be vaccinated against the coronavirus or tested weekly. However, it did leave in place a vaccination requirement for health care workers.
Meanwhile, the White House announced Friday that the federal website where Americans can request their own free COVID-19 tests will begin accepting orders next Wednesday. Those tests could provide motivation for some people to seek vaccination, and the administration is looking to address nationwide shortages. Supplies will be limited to just four free tests per home.
On Thursday, the Supreme Court ruled that OSHA appeared to overstep its congressional authority to implement occupational standards, saying, “Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most.”
The mandate was announced last September, accompanied by biting criticism from Biden for the roughly 80 million American adults who hadn’t yet gotten shots
“We’ve been patient. But our patience is wearing thin, and your refusal has cost all of us,” he said. The unvaccinated minority, he said, “can cause a lot of damage, and they are.”
In a statement after the Supreme Court ruling, Biden expressed disappointment with the outcome but said the mandates have already had their desired effect on reducing the number of unvaccinated adults.
“Today, that number is down to under 35 million,” he said of the unvaccinated. “Had my administration not put vaccination requirements in place, we would be now experiencing a higher death toll from COVID-19 and even more hospitalizations.”
While the court left open the possibility for the U.S. to pursue more targeted mandates, White House officials said there were no immediate plans to seek a redo of the regulation.
“It’s now up to the states and individual employers to put in place vaccination requirements,” said White House press secretary Jen Psaki on Friday.
The United States is already “languishing,” with a 60% vaccination rate, near the bottom of peer nations, said Lawrence Gostin, a public health law expert at Georgetown University.
“The OSHA rule was truly the president’s last best shot at significantly boosting the vaccination rate,” Gostin said. But the court, “in a very highly partisan way, intentionally tried to handcuff the president in doing what he needs to do.’’
Many large businesses that had already put in place vaccination-or-testing requirements indicated they had no plans to reverse course. But smaller companies said they were breathing a sigh of relief, fearing worker shortages if the OSHA rule had been allowed to go into force.
The Supreme Court decision has “taken a little bit of a burden of worry off of our shoulders,” said Kyle Caraway, marketing director at Doolittle Trailer Manufacturing, which joined a lawsuit by the Missouri attorney general challenging Biden’s policy. About 90% of the 175 employees at the Holts Summit, Missouri-based company had indicated they would refuse to comply with a vaccination requirement, he said.
“It became apparent to us that our team was going to shrink greatly overnight if that vaccine mandate went into place,” said Caraway, who counted himself among those opposing Biden’s policy. Halting production could have forced the company “to consider shuttering our doors,” he said.
- Mary Kay Henry, International President of the Service Employees International Union (SEIU) speaks before the second of two Democratic presidential primary debates hosted by CNN, on July 31, 2019, in the Fox Theatre in Detroit.
The Service Employees International Union, which represents more than 2 million workers, said the court decision was 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 renewed debate over vaccination mandates comes as a record number of Americans are hospitalized with COVID-19, the country is averaging nearly 800,000 new cases and 1,700 deaths a day and resistance to vaccines remains a problem, most notably in deeply conservative states like Mississippi, Alabama, Wyoming and Idaho where less than half the population is fully vaccinated.
Hospitals nationwide are suffering chronic staffing shortages and being bombarded with people showing up at emergency rooms in need of virus tests. National Guard troops have been activated in dozens of states to help out at medical centers, nursing homes and testing sites.
A hospital on the edge of the Kansas City area had to borrow ventilators from the state of Missouri’s stockpile and hunt for more high-flow oxygen machines, and the largest county in Kansas said Friday that it’s running out of morgue space — again.
Gostin predicted the court’s action would have grave influence on other federal agencies’ efforts to protect public health, by ruling that OSHA can’t regulate something that would have a huge economic impact without explicit authorization from Congress. And he said states won’t be able to make up for the ruling’s impact.
“If COVID has taught us anything, it’s taught us that states can’t deal with big, bold problems, can’t prevent a pathogen from going from Florida to New York,” he said. “These are national problems requiring federal solutions.”
Psaki said the White House would work with businesses to promote the benefits of vaccination-or-testing requirements and that Biden would highlight successful programs.
“The Court has ruled that my administration cannot use the authority granted to it by Congress to require this measure,” Biden said. So “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.”
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David A. Lieb in Jefferson City, Missouri, and Lindsay Tanner in Chicago contributed.
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