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Supreme Court on vaccine mandates: Hospitals OK, general employment a “no”


Statuary and facade outside neoclassical federal building.

The Biden administration has made vaccine mandates central to its attempts to limit the impact of the COVID-19 pandemic. Or at least it has tried to; various states and other organizations have used the courts to challenge the federal government’s authority to impose these mandates. Last week, the Supreme Court heard arguments regarding two of the most significant mandates: one for all hospital workers issued by the Department of Health and Human Services (HHS), and a second for all employees of large companies issued by the Occupational Safety and Health Administration (OSHA).

By the time the cases were argued before the Supreme Court, the HHS rule was already blocked by a stay issued by a lower court. By contrast, the OSHA rules had seen a lower court lift earlier stays, leaving it on the verge of enforcement.

On Thursday, the Supreme Court issued expedited rules that reflected the tone of the questioning the week before. The OSHA rule is now subject to a stay that blocks its implementation, a decision that saw the court’s three liberal justices issue a dissent. The stay against the HHS rules was lifted, but only by a close 5-4 ruling.

The decisions are available on the Supreme Court’s website.

The OSHA decision

At issue is the law authorizing OSHA to issue temporary emergency standards, which can be issued when “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.” OSHA determined that COVID-19 posed a new hazard and presented evidence that the virus was often spread in a variety of workplaces. The agency’s rule would offer vaccination or testing and masking as options, and it would not apply to workplaces that could demonstrate they posed a low risk of exposure.

The ruling was issued by the court as a whole and joined in a separate concurrence from Justices Gorsuch, Thomas, and Alito. The ruling determined that those suing to block the OSHA rule were likely to prevail, and it is largely focused on the scope of the rule. It suggests that the agency likely does have the ability to regulate the risk of viral exposure in “particularly crowded or cramped environments” but states that infection “is not an occupational hazard in most [workplaces],” which include things like landscapers and other occupations that occur primarily outdoors. This conclusion is strongly contested in the dissent, as we’ll see below.

The ruling likens OSHA’s approach to “broad public health measures” and fails to distinguish between risks specific to the workplace and those facing society more generally.

The concurrence by Gorsuch, Thomas, and Alito agrees that the rule won’t survive court challenges, but it attempts to place the decision in the context of their larger ideological battles over the scope of federal authority. They make frequent mentions of the major questions doctrine, which suggests that agencies cannot take major regulatory actions without being specifically directed to by Congress. But they go beyond that by suggesting that Congress doesn’t even have the right to give that sort of authority to regulatory agencies: “If the statutory subsection the agency cites really did endow OSHA with the power it asserts, that law would likely constitute an unconstitutional delegation of legislative authority.”

The dissent by Justices Breyer, Sotomayor, and Kagan focuses on the plain language of legislation that OSHA cites for its authority, concluding that COVID-19 definitely qualifies as both a “grave danger” and “new hazard.” It notes that the rule issued by OSHA was backed up by extensive documentation of spread within a variety of workplaces—not strictly cramped or crowded ones. The dissent slams the majority for “acting outside of its competence” by dismissing the OSHA risk analysis, which was performed by experts in occupational safety.

As for the majority’s distinction between workplace and general risks, the dissent notes that OSHA currently regulates risks like fires and electrical problems without any legal issues.



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