Supreme Court halts Biden vaccine-or-test policy for businesses, allows mandate for health care workers

Washington, D.C. Newsroom, Jan 13, 2022 / 13:20 pm

The Supreme Court has blocked President Joe Biden's sweeping vaccine-or-test mandate businesses, while allowing a new federal rule to go forward that requires millions of U.S. health care workers to be fully vaccinated against the virus that causes COVID-19.

The court decided 6 to 3, with the conservative justices voting in the majority, to issue a stay halting the implementation of the vaccine-or-test mandate for businesses with 100 or more employers, which would have taken full effect on Feb. 9.

The decision allowing the health care vaccination requirement to go forward was 5 to 4, with conservatives Chief Justice John Roberts and Justice Brett Kavanaugh joining the court's three liberal justices in the majority.

Biden reacted to the split decisions in a statement issued Thursday afternoon.

"Today’s decision by the Supreme Court to uphold the requirement for health care workers 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. It will cover 10.4 million health care workers at 76,000 medical facilities. We will enforce it," Biden said.

"At the same time, I am disappointed that the Supreme Court has chosen to block common-sense life-saving requirements for employees at large businesses that were grounded squarely in both science and the law," the statement continued. "This emergency standard allowed employers to require vaccinations or to permit workers to refuse to be vaccinated, so long as they were tested once a week and wore a mask at work: a very modest burden."

A question of who decides

At issue in the federal rule for businesses was whether the Occupational Safety and Health Act of 1970 gave the Occupational Safety and Health Administration (OSHA) the authority to impose the vaccine-or-test mandate. The act directs OSHA to issue emergency rules when it determines that a rule is “necessary” to protect employees from a “grave danger” from exposure to “physically harmful” “agents” or “new hazards.”

"Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided. The Secretary has ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense," the decision states.

"This is no 'everyday exercise of federal power.' ... It is instead a significant encroachment into the lives — and health — of a vast number of employees," the decision states.

"The question, then, is whether the Act plainly authorizes the Secretary’s mandate. It does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures."

Under OSHA's mandate, employers that fail to comply would face fines up to $13,653 for a standard violation, and up to $136,532 for a "willful" one.

The plaintiffs in the vaccine-or-test mandate case, the National Federation of Independent Business and the state of Ohio, argued that the requirements were too broad and would cause a mass exodus of employees.

In their dissent, liberal justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor said the urgency of the pandemic justified the government's policy.

"When we are wise, we know enough to defer on matters like this one. When we are wise, we know not to displace the judgment of experts, acting within the sphere Congress marked out and under Presidential control, to deal with emergency conditions," the dissent states. "Today, we are not wise."

Rule for health care workers stands

The health care worker vaccination mandate applies to an estimated 17 million people working at some 76,000 government-funded health care facilities. The vaccination requirement is set to take effect on Jan. 27, according to a Dec. 28 memo from the Centers for Medicare and Medicaid Services.

The Biden administration said the authority for the health care worker mandate comes from the Social Social Security Act, which authorizes the Secretary of Health and Human Services to “make and publish such rules and regulations” that “may be necessary to the efficient administration” of Medicare and Medicaid programs.

"The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it," the majority decision in the health care worker case states. "At the same time such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have."

Conservative justices Clarence Thomas and Samuel Alito each wrote dissents.

"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," Thomas states.

"These cases are not about the efficacy or importance of COVID-19 vaccines," he continued. "They are only about whether CMS has the statutory authority to force health care workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo."

The court has already allowed state vaccination mandates for health care workers in Maine and New York to take effect, despite the absence of religious exemptions.

In light of the decision on the mandate for businesses, some states may adopt the same or similar requirements as the ones laid out in the OSHA policy, as Illinois has done already.

A surge in new cases

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The court's decisions come almost two years since the first reported COVID-19 case in the United States, on Jan. 21, 2020. Since then the U.S. has reported 63,203,443 cases, and 844,562 deaths, according to data reported by Johns Hopkins University.

Meanwhile, the unpredictable course of the virus continues to bedevil health experts. To date, 63% of the U.S. population, and 72% of those 12 and over, are fully vaccinated, and more than a third of Americans have received booster shots on top of their vaccinations, according to the U.S. Centers for Disease Control and Prevention (CDC.)

Yet despite widespread vaccinations, and other government measures aimed at slowing the virus' spread, there have been millions of new cases in recent weeks attributed to the latest Omicron variant. The rapid transmission of Omicron, even among the fully vaccinated, raised fresh questions about the effectiveness of the government's vaccination requirements.

Millions of Americans, including many Catholics, remain opposed to vaccination for a variety of reasons. These include concerns about possible side effects and long-term harm from the vaccines, opposition to government coercion, and conscientious objections related to the use of cell lines derived from the fetal tissue of aborted babies that were used in the development or testing of the vaccines.

Pope Francis and the Vatican have strongly advocated for vaccination, but not always in a consistent manner.

In its note supporting the licit use of the vaccines, the Congregation for the Doctrine of the Faith has emphasized that “vaccination is not, as a rule, a moral obligation and that, therefore, it must be voluntary.”

Pope Francis, however, said in a television broadcast last year, on Jan. 10, 2021, that vaccination is a moral obligation.

"There is a suicidal denialism that I would not know how to explain but today people must take the vaccine," Pope Francis said at the time.

He used similar language in his annual address to diplomats on Jan. 10 of this year, though the Vatican's English translation of his remarks quotes the pope as saying, "Health care is a moral obligation," not vaccination, as was widely reported.

In a statement, Louis Brown, executive director of the Christ Medicus Foundation, a Catholic nonprofit organization that advocates for religious freedom and "Christ-centered" health care, applauded the court's decision in the business mandate case but said the health care worker decision sets a "dangerous precedent."

"The federal government’s health care worker vaccine mandate is a slap in the face to the countless medical professionals who risked their lives to care for patients during the pandemic but have been or are now being fired because of their decision not to get vaccinated," said Brown, a former acting deputy director of the Civil Rights Division at the U.S. Department of Health and Human Services.

"The attempts of the federal government and some municipal governments to mandate medical interventions, particularly those interventions that are comparatively new, is a grave violation of the human and civil rights and human dignity of millions of Americans," the statement continued. "Our country, the American people, and particularly our heroic medical professionals deserve better than the decision of the Supreme Court today."

Editor's note: This story was updated on Jan. 14 to include comments from the Christ Medicus Foundation.