Supreme Court Justice Brett Kavanaugh on Jan. 13 issued the 6-3 decision to block OSHA’s COVID–19 Vaccination and Testing; Emergency Temporary Standard, meaning the case now goes for review to the U.S. Court of Appeals for the Sixth Circuit.
The mandate, reportedly affecting 84 million U.S. workers, went into effect Jan. 10. It required covered workers to receive a COVID–19 vaccine or to obtain a test each week at their own expense and on their own time to ensure they weren’t positive for the virus, and also required them to wear a mask each workday. The mandate covered businesses with 100 or more employees.
In a separate decision, the court allowed a rule imposed by the Centers for Medicare & Medicaid Services that requires vaccination of all staff at all Medicare and Medicaid providers.
For the justices who voted against the general workplace mandate, the issue was how vaccination would affect workers once they left their jobs.
“... a vaccine mandate is strikingly unlike the workplace regulations that OSHA has typically imposed. A vaccination, after all, “cannot be undone at the end of the workday.
“...We are told by the States and the employers that OSHA’s mandate will force them to incur billions of dollars in unrecoverable compliance costs and will cause hundreds of thousands of employees to leave their jobs.”
The justices said that role was for democratically chosen congressional leaders.
“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.”
In dissenting remarks, Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan wrote in part, “Underlying everything else in this dispute is a single, simple question: Who decides how much protection, and of what kind, American workers need from COVID–19? An agency with expertise in workplace health and safety, acting as Congress and the President authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes? Here, an agency charged by Congress with safeguarding employees from workplace dangers has decided that action is needed. The agency has thoroughly evaluated the risks that the disease poses to workers across all sectors of the economy. It has considered the extent to which various policies will mitigate those risks, and the costs those policies will entail. It has landed on an approach that encourages vaccination, but allows employers to use masking and testing instead.”
Here are some reactions:
National Civil Liberties Alliance:
NCLA commends the U.S. Supreme Court for ruling today to invalidate the private employer vaccine mandate imposed on 84 million Americans nationwide by the Occupational Safety and Health Administration.
In a split decision, the Supreme Court found that OSHA’s Emergency Temporary Standard for Covid-19 is unprecedently broad, invasive, and extends beyond the agency’s legitimate reach.
The mandate required employers with 100 or more employees to either implement a mandatory COVID-19 vaccination policy or force employees to present a weekly negative COVID-19 test.
NCLA argued in separate amicus briefs for similar COVID-19 vaccine mandate lawsuits against OSHA that an executive agency may issue regulations to resolve “major questions” of economic and political significance only if Congress has explicitly and specifically delegated such authority—and even then, Congress still must provide intelligible principles for the agency to follow.
In their concurrence, Justices Gorsuch, Thomas, and Alito highlighted the importance of the major questions and nondelegation doctrine and separation of powers. “If administrative agencies seek to regulate the daily lives and liberties of millions of Americans, the doctrine says, they must at least be able to trace that power to a clear grant of authority from Congress.”
NCLA has opposed employer-based vaccine mandates, and those imposed by executive officials without legislative input, since August 2021. NCLA has filed several lawsuits—Vanderstelt v. Biden, Rodden v. Fauci, Norris v. MSU, Zywicki v. GMU—challenging similar government-imposed vaccine mandates as a condition of employment.
Sen. Mike Braun, R-IN
Braun, who fought against the rule in the Senate, including a successful vote to overturn the rule Dec. 8 and a brief sent to the Supreme Court calling on them to block the mandate, issued a video response. In it, he talked about his role in the Senate fight and said, “It was so important to businesses across the country. Back in Indiana it was nonstop discussion. Finally, now we can breathe a little easier that the Supreme Court has weighed in.”
Indiana Republican Party Chairman Kyle Hupfer
I am relieved to see that Supreme Court has blocked Joe Biden’s unconstitutional vaccine mandate for private businesses. If it had been allowed to go into effect, the mandate would have further weakened our fragile supply chains, kept shelves empty, and worsened our already critical labor shortage.
As the general counsel of the RNC, I am proud of our team for filing one of the lawsuits challenging the reckless Biden Administration. We will continue to stand up and fight for workers and businesses.
Indiana Attorney General Todd Rokita
Rokita was one of the nation’s several attorneys general who opposed the mandate.
In response to the Supreme Court ruling, he said, “The court quite correctly discerned the intrusive federal overreach of the OSHA rule. Now, we must continue our legal efforts to protect Hoosiers’ liberties from all the other draconian edicts unleashed by the Biden administration.”
Rokita also filed suit to stop the CMS rule. Rokita also has filed lawsuits over a vaccine mandate for federal contractors and a mandate requiring masks for children as young as 2 years of age and vaccines for staff and volunteers at childcare programs receiving Head Start funds.
The American Health Care Association
The AHCA represents more than 14,000 nursing homes and long-term care facilities across the country that provide care to approximately 5 million people each year.
Mark Parkinson, president and CEO of AHCA, said “We respect the ruling of the U.S. Supreme Court but remain concerned that the repercussions of the vaccine mandate among health care workers will be devastating to an already decimated long term care workforce. When we are in the midst of another COVID surge, caregivers in vaccine hesitant communities may walk off the job because of this policy, further threatening access to care for thousands of our nation’s seniors. We continue to ask that CMS and state surveyors show leniency during this critical time as well as consider a regular testing option for unvaccinated staff members to prevent worsening staff shortages.
“Long term care providers have been relentless in encouraging staff to get vaccinated, and we have made considerable progress with 83 percent of nursing home staff now fully vaccinated. However, rampant misinformation has sowed doubt and concern among many on the frontlines. We must collectively address the root cause of vaccine hesitancy rather than penalize providers who are making valiant efforts.”