Supreme Court blocks Biden’s COVID vaccine rule for companies, allows mandate for health care workers

Washington — The Supreme Court on Thursday blocked the Biden administration’s vaccine-or-test rule for businesses with at least 100 workers, but granted a separate request from the Biden administration to allow its vaccine mandate for health care workers to take effect.

In an unsigned opinion on the rule from the Occupational Safety and Health Administration (OSHA), which would require workers to be vaccinated against COVID-19 or submit to weekly tests, the high court said a slew of GOP-led states, businesses and nonprofit organizations that challenged it are “likely to prevail.”

“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. “Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”

The three members of the court’s liberal wing — Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan — dissented.

The high court, though, gave the green-light to a requirement that health care workers in facilities that receive Medicare and Medicaid funding must be vaccinated, siding 5-4 with the Biden administration.

“The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it,” the Supreme Court said in its second unsigned opinion. “At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.”

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

The decisions come less than a week after the justices heard oral arguments on the emergency requests regarding the vaccine-or-test rule and vaccine requirement for health care workers.

President Biden first announced the rules in September as part of a broader strategy from his administration to combat the spread of the Delta variant, which drove a surge of infections toward the end of the summer. 

But the nation is now battling another spike in COVID-19 infections and hospitalizations from the highly transmissible Omicron variant, and the Biden administration has said its vaccine requirements are crucial for protecting workers and patients.

The Supreme Court was asked to intervene last month and swiftly held oral arguments to weigh the emergency requests.

In a statement, the president said he is “disappointed” the court blocked OSHA’s vaccine-or-test rule, but said its ruling upholding the requirement for health care workers will save the lives of patients and employees at covered facilities. 

“As a result of the court’s decision, it is now up to states and individual employers to determine whether to make their workplaces as safe as possible for employees, and whether their businesses will be safe for consumers during this pandemic by requiring employees to take the simple and effective step of getting vaccinated,” Mr. Biden said. “The court has ruled that my administration cannot use the authority granted to it by Congress to require this measure, 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.”

Under the OSHA rule issued in early November, businesses with at least 100 employees must either require their workers to be vaccinated against COVID-19 or be subject to weekly testing and wear face masks. The vaccine-or-test rule was set to take effect January 4, but OSHA said it would not begin issuing citations linked to the standard before February 9 as long as an employer “is exercising reasonable, good faith efforts to come into compliance” with the requirement. 

The Biden administration estimated that more than 80 million employees could be impacted by the policy.

But the OSHA rule was challenged in federal courts from coast to coast and ultimately consolidated in the 6th Circuit Court of Appeals. A divided three-judge panel allowed the Biden administration’s rule to take effect, finding the requirements were “not a novel expansion of OSHA’s power; it is an existing application of authority to a novel and dangerous worldwide pandemic.”

The Supreme Court received more than a dozen requests for emergency action in cases challenging the requirement after the 6th U.S. Circuit’s ruling, with business associations, Republican-led states and private businesses covered by the rule arguing OSHA lacked the power to issue the vaccine requirement.

The Supreme Court’s majority said the groups are likely to succeed on the merits of their claim that the secretary of labor, acting through OSHA, lacked authority to impose the vaccine-or-test rule.

“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 court said.

But Breyer, Sotomayor and Kagan wrote in a joint dissent that they believe the policy falls within OSHA’s mission of protecting employees from “grave danger” that comes from “new hazards” or exposure to harmful agents.

“In our view, the court’s order seriously misapplies the applicable legal standards. And in so doing, it stymies the federal government’s ability to counter the unparalleled threat that COVID–19 poses to our nation’s workers,” the three justices wrote. “Acting outside of its competence and without legal basis, the court displaces the judgments of the government officials given the responsibility to respond to workplace health emergencies.”

The second rule examined by the Supreme Court was issued by the Centers for Medicare and Medicaid Services (CMS) in November and laid out vaccine requirements for staff at a wide range of facilities that participate in Medicare and Medicaid. The requirement does not have a daily or weekly testing option for unvaccinated workers, but does include medical and religious exemptions.

The Biden administration estimated the vaccine mandate affects more than 17 million employees in roughly 76,000 facilities. 

Numerous states challenged the vaccine mandate for health care workers in federal court, arguing Health and Human Services Secretary Xavier Becerra exceeded his authority to implement the requirement. 

In one case brought by 10 states, a federal district court in Missouri blocked enforcement of the mandate in those places, and the 8th Circuit Court of Appeals declined to overturn the lower court’s order. Then, in a separate case brought by 14 states, a federal district court in Louisiana blocked the rule from taking effect nationwide, but the 5th Circuit narrowed the scope of the order to the 14 states that together sued the Biden administration. 

The Justice Department asked the Supreme Court last month to let the administration’s vaccine mandate take effect in the 24 states where its implementation is currently halted. 

The Supreme Court, with its 5-4 decision, lifted the lower court decisions that stopped enforcement of the mandate for health care workers in 24 states. The rule, the court said, “fits neatly” within the language of federal law allowing the secretary to impose conditions on Medicaid and Medicare funds. 

“After all, 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 Supreme Court said.

In a dissent joined by Alito, Gorsuch and Barrett, Thomas said the Biden administration did not make a “strong showing” that Congress gave CMS the authority to require health care workers to get vaccinated against COVID-19.

“The omnibus rule is undoubtedly significant — it requires millions of healthcare workers to choose between losing their livelihoods and acquiescing to a vaccine they have rejected for months. Vaccine mandates also fall squarely within a state’s police power, and, until now, only rarely have been a tool of the federal government,” Thomas wrote. “If Congress had wanted to grant CMS authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly. It did not.”