The Supreme Court, ruling 6-3 on a predictable partisan axis, has tossed out Joe Biden’s federal coronavirus vaccine mandate for large employers. But it will allow the administration’s less sweeping vaccine requirements for health care workers at federally funded facilities to move forward.
The federal suits seeking to block the mandates reflected widespread hostility towards covid vaccines on the hard political right, which has increasingly struck an alliance of convenience with the anti-vaxx movement and rallied around the theme of “vaccine choice.” The suits were predominantly filed by officials from GOP-controlled state governments and conservative lobbying groups. Chief Justice John Roberts and Associate Justices Samuel Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas, who together form the court’s right-wing supermajority, all sided on Thursday against the large employer mandate. Their liberal colleagues Stephen Breyer, Elena Kagan, and Sonia Sotomayor made up the dissent. Roberts and Kavanaugh joined the latter three in the second 5-4 decision upholding health worker vaccination requirements.
The Biden administration rules would have mandated employers with more than 100 staff to require their employees either be vaccinated or otherwise wear masks and take weekly coronavirus tests. It did contain carve-outs exempting certain classes of workers, such as those with legitimate medical or religious objections, fully remote workers, and those who work entirely outside.
The temporary rule wouldn’t actually require employers to purchase those tests for employees or pay for time off to take them, although CNN reported the decision to charge unvaccinated workers for the tests would ultimately be decided on a state-by-state basis. Biden issued the rule, which the White House said wouldn’t be enforced until Feb. 9, on an emergency basis through the Occupational Safety and Health Administration (OSHA); a commonly cited statistic was that it would have applied to 84 million private-sector employees.
Throwing the large employer mandate out is an unmitigated disaster for the federal government’s ability to control the pandemic. Legal experts quoted by Law&Crime and Barron’s considered OSHA’s authority to impose such emergency requirements to be very clear, and an appellate court had agreed. It’s hard not to see the ruling as just another partisan flex by a court now firmly under the control of Republican appointees. In the ruling, the court’s conservative majority essentially argued that because the coronavirus can spread anywhere, it’s not a workplace hazard:
“The Solicitor General does not dispute that OSHA is limited to regulating ‘work-related dangers.’ Response Brief for OSHA in No. 21A244 etc., p. 45 (OSHA Response). She instead argues that the risk of contracting COVID–19 qualifies as such a danger. We cannot agree. Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. 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.”
One could make similar arguments about, say, fire. Or, for that matter, breathing unfit air, vehicular collisions, drowning, being electrocuted, or falling down a flight stairs.
“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,” they added. “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.”
In their dissent, the liberal justices wrote that SCOTUS is “lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes.”
The other mandate upheld by SCOTUS applies to a large, but far smaller number of health care workers (over 17 million). Issued through the Centres for Medicare & Medicaid Services (CMS), it creates vaccination requirements for staff at hospitals, other health care and medical facilities, and health systems that receive funding from Medicaid or Medicare — which is the vast majority of U.S. health care providers. CMS cited its authority as a government agency to impose conditions of participation or coverage on those who receive its funds but included exemptions on medical and religious grounds.
The rulings are far from a surprise. Conservative justices on the court were sceptical of the large employer mandate in proceedings, according to the New York Times. Roberts referred to it as “something that the federal government has never done before,” while Barrett focused on whether the mandate was unreasonably broad because it did not distinguish between certain types of employers. Gorsuch and Kavanaugh raised objections that the statute allowing for OSHA to issue temporary rules during emergencies was not defined clearly enough to justify such broad action.
Kagan, the Times wrote, said the mandate was necessary: “This is a pandemic in which nearly a million people have died. It is by far the greatest public health danger that this country has faced in the last century.” Breyer found it “unbelievable that it could be in the public interest to suddenly stop these vaccinations.”
SCOTUS had, however, previously ruled in favour of state mandates for health care workers. In court, according to the Times, Kavanaugh had observed that the case was extremely unusual because “the people who are regulated are not here complaining about the regulation” but instead “overwhelmingly appear to support” it. Kagan was more blunt in her assessment: “People are not showing up to hospitals because they’re afraid of getting Covid from staff… Basically, the one thing you can’t do is to kill your patients.”