Supreme Court Blocks Biden’s Shot-or-Test Rule for Workers

(Bloomberg) -- A divided U.S. Supreme Court blocked the centerpiece of President Joe Biden’s push to get more people vaccinated amid a Covid-19 surge, rejecting an Occupational Safety and Health Administration rule that would have required 80 million workers to get shots or periodic tests.

The court let a separate rule take effect requiring shots for workers in nursing homes, hospitals and other facilities that receive Medicare and Medicaid payments from the federal government.

The ruling on OSHA limits Biden’s options for increasing the country’s vaccination rate as the omicron variant propels a spike in cases. The U.S. Centers for Disease Control and Prevention says only 63% of the country is fully vaccinated and of that group just 37% have received a booster shot. More than 800,000 people in the U.S. have died from the virus.

“Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly,” the court said in an unsigned opinion. 

The court’s three liberals -- Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor -- dissented. The decision “stymies the federal government’s ability to counter the unparalleled threat that COVID–19 poses to our nation’s workers,” they said in an unusual joint opinion.

Biden said in a statement that he was disappointed the court blocked “common-sense life-saving requirements for employees at large businesses that were grounded squarely in both science and the law.” He said it was now up to states and private employers to determine whether to institute such requirements to keep their workplaces safe.

The ruling is a victory for 26 business groups, led by the National Federation of Independent Business, and 27 Republican-led states. They sued to challenge the OSHA policy, saying it exceeded the workplace-safety agency’s authority.

“Today’s decision is welcome relief for America’s small businesses, who are still trying to get their business back on track since the beginning of the pandemic,” said Karen Harned, executive director of NFIB’s Small Business Legal Center.

Emergency Rule

The OSHA rule required employers with 100 or more workers to make them get vaccinated or be tested regularly, potentially at their own expense. Although the rule had partially taken effect, OSHA had said it wouldn’t issue citations until at least Feb. 9 to employers who were trying in good faith to comply with the testing requirements.

OSHA issued the rule as a so-called emergency temporary standard, or ETS. Under federal law, the agency can put an ETS in place immediately for six months but must meet a more demanding legal test by showing it is “necessary” to protect employees from “grave danger.”

OSHA estimated before the omicron variant emerged that the standard would save more than 6,500 worker lives over six months.

The Supreme Court had been receptive to targeted vaccine mandates issued by state and local officials, repeatedly rejecting religious objections. But the OSHA case centered not on religious rights but on the power of a federal agency whose governing statute doesn’t explicitly authorize vaccine requirements.

The health-care vaccination rule, issued by the Centers for Medicare & Medicaid Services, will apply to 15 different kinds of health facilities. The rule, which provides exemptions for medical and religious reasons, was challenged by separate groups of states led by Missouri and Louisiana.

In permitting that rule in a separate unsigned opinion, the court said Congress had authorized the agency to take steps to protect the health and safety of Medicaid and Medicare recipients.

“Ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm,” the court said.

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett dissented.

“These cases are not about the efficacy or importance of COVID–19 vaccines,” Thomas wrote for the group. “They are only about whether CMS has the statutory authority to force healthcare workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo.”

Biden said the health-care ruling “will save lives: the lives of patients who seek care in medical facilities, as well as the lives of doctors, nurses, and others who work there. He added: “It will cover 10.4 million health care workers at 76,000 medical facilities. We will enforce it.”

The OSHA cases are National Federation of Independent Business v. Department of Labor, 21A244, and Ohio v. Department of Labor, 21A247. The CMS cases are Biden v. Missouri, 21A240, and Becerra v. Louisiana, 21A241.

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