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  • The Supreme Court blocked the vaccine-or-testing rule for large businesses issued by OSHA.
  • The court allowed a vaccine requirement at Medicare- and Medicaid-funded healthcare facilities.
  • The decisions were released 3 days after OSHA’s emergency measure took effect.

On Jan. 13, the U.S. Supreme Court blocked the Biden administration’s vaccine-or-testing rule for large businesses but allowed to stand a vaccine requirement for Medicare- or Medicaid-funded facilities.

The decisions were released 3 days after the Occupational Safety and Health Administration (OSHA) emergency measure took effect.

This would have required businesses with more than 100 employees to ensure that their workers are fully vaccinated against COVID-19, or undergo weekly testing and wear a face covering at work. There are exceptions for medical or religious reasons.

“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 unsigned opinion says.

“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, liberal justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan wrote: “In the face of a still-raging pandemic, this Court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed.”

“As disease and death continue to mount, this Court tells the agency that it cannot respond in the most effective way possible.”

In its ruling on the vaccine requirement for healthcare facilities, the court agreed that the Department of Health and Human Services (HHS) has the power to impose conditions such as this for the receipt of Medicaid and Medicare funds.

“The rule thus fits neatly within the language of the statute. After all, ensuring that [healthcare] 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,” says the opinion.

During almost 4 hours of arguments on Jan. 7, the Biden administration defended the OSHA regulation.

It contended that the country is facing a pandemic “that is sickening and killing thousands of workers around the country” and that any delay in the vaccine-or-testing requirement “will result in unnecessary illness, hospitalizations and death.”

This comes amid an ongoing spike in coronavirus cases throughout the country — including among children — with many hospitals strained by the surge in COVID-19 patients and infections among healthcare workers.

During the hearing, the three liberal justices signaled that they approved of both of the administration’s rules.

“We know that the best way to prevent spread is for people to get vaccinated,” Justice Elena Kagan said, “and to prevent dangerous illness and death is for people to get vaccinated. That is by far the best. The second best is to wear masks.”

However, questions asked by conservative justices Samuel Alito, Clarence Thomas, and Amy Coney Barrett during the hearing suggested that they felt the Biden administration’s rules were too broad.

Barrett asked whether a “more targeted” rule focused on industries with a higher risk of coronavirus transmission — such as healthcare facilities or meat-packing plants — might be more legally acceptable.

Justices Neil Gorsuch and Brett Kavanaugh questioned whether a federal agency such as OSHA could issue such a broad regulation without clear authorization from Congress.

Chief Justice John Roberts seemed to agree on this point and asked whether vaccine rules might be the role of state governments.

“Why doesn’t Congress have a say in this… and why [isn’t this] the primary responsibility of the states?” he said.

After the Jan. 7 hearing, Risa L. Lieberwitz, JD, a professor of labor and employment law at Cornell University, felt that it was likely that the court would block enforcement of the OSHA rule.

“Several conservative justices expressed doubts that OSHA’s mandate falls within its statutory power to issue emergency rules necessary to protect workers against a grave danger,” Lieberwitz said.

“Rather, these justices pointed to Congress or the states as the appropriate venues for such public health-related regulations,” she said.

In addition, Lieberwitz said Justice Alito suggested that the OSHA vaccine-or-testing rule was insufficiently related to the workplace.

“Most OSHA regulations — all of the ones with which I’m familiar — affect employees when they are on the job, but not when they are not on the job,” he said. “And this [rule] affects employees all the time. If you’re vaccinated while you’re on the job, you’re vaccinated when you’re not on the job.”

However, Lieberwitz said the liberal justices expressed the view that OSHA’s vaccine-or-testing rule falls clearly within the agency’s power to protect the health of employees during the pandemic.

“This is a pandemic in which nearly a million people have died,” said Justice Kagan. “It is by far the greatest public health danger that this country has faced in the last century. More and more people are dying every day. More and more people are getting sick every day.”

“[The OSHA rule is] an extraordinary use of emergency power occurring in an extraordinary circumstance,” she added, “a circumstance that this country has never faced before.”

As for vaccine rules issued by states or cities — such as ones in New York state and New York City — Lieberwitz said those would likely not be affected by the Supreme Court’s decision on the two cases, which are focused on the powers of the federal government.

In early December, the Supreme Court refused to block New York state’s vaccination requirement for healthcare workers.

“Thus, states and local governments have a strong basis for issuing vaccine mandates to protect the health and safety of employees, customers, and clients,” Lieberwitz said.