Supreme Court sinks Biden’s vaccine mandate for large employers

By a 6-3 margin with all six conservative judges ruling in tandem, the Supreme Court issued a much-anticipated decision against the Occupational Safety and Health Administration’s (OSHA) “vaccine or test” Emergency Temporary Standard (ETS).

“The question before us is not how to respond to the pandemic, but who holds the power to do so,” Justice Neil Gorsuch wrote in a concurring opinion. “The answer is clear: Under the law as it stands today, that power rests with the States and Congress, not OSHA.”

The Court reinstated the stay that had been dissolved by the Sixth Circuit Court of Appeals panel. The case was brought by the National Federation of Independent Business (NFIB).

The NFIB’s legal challenge argued three main points:

• OSHA needed to use the typical notice-and-comment procedure for the mandate to gather input; 
• a nationwide COVID-19 vaccine and testing mandate, monitoring and database is fundamentally a policy decision that should be left to Congress; and 
• the mandate would result in unrecoverable compliance costs, lost profits, lost sales and further exacerbate the labor shortage for small businesses

  Key points of the Supreme Court’s decision were:

• OSHA exceeded its authority by trying to regulate a hazard that is not specific to the workplace;
• OSHA does not have authority to regulate public health, the court decided; 
• to allow this regulation to remain in place would significantly expand OSHA's authority with no limiting principle; and
• Congress has not given OSHA specific enough authority to regulate such a broad hazard

Essentially, the court decided that workers could not just get the COVID-19 virus at work. Thus, in the Supreme Court’s logic behind its ruling, this was not an issue over which OSHA had standing. The case will now go back to the Sixth Circuit for further consideration on the merits of the challenge consistent with the Supreme Court's decision.

Therefore, while blocked from going into effect, the ETS is not yet invalidated, attorneys emphasized. Trucking interests nevertheless hailed the Supreme Court’s decision.

“ATA has won a tremendous victory on behalf of the trucking industry and workers and employers everywhere,” American Trucking Associations President and CEO Chris Spear said in a statement.

The Supreme Court’s ruling “validates our claim that OSHA far overstepped its authority in issuing an emergency temporary standard that would interfere with individuals’ private health care decisions,” Spear added.

“Trucking has been on the front lines throughout the pandemic – delivering PPE, medical supplies, food, clothing, fuel and even the vaccines themselves. Thanks to this ruling, our industry will continue to deliver critical goods, as our nation recovers from the pandemic and we move our economy forward,” Spear concluded.

Last Sept. 9, President Biden announced a plan to require more Americans to be vaccinated. As part of that plan, the President said that the Department of Labor would issue an emergency rule requiring all employers with at least 100 employees to ensure their workforces are fully vaccinated or show a negative test at least once a week.

More than 80 million workers would have been affected by the ruling. OSHA had estimated that the rule would save 6,500 lives and prevent 250,000 hospitalizations over six months.

President Joe Biden said he was “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.”

Biden called on businesses to institute their own vaccination requirements. He said one-third of Fortune 100 companies already have done so.

“OSHA has never before imposed such a mandate,” the conservatives wrote in an unsigned opinion. “Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here.”

In response, the court’s three liberals argued that it was the court that was overreaching. They said the six conservatives were substituting their judgment for that of health experts.

“Acting outside of its competence and without legal basis, the Court displaces the judgments of the government officials given the responsibility to respond to workplace health emergencies,” Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor wrote in a joint dissent.

More than 208 million Americans, 62.7% of the population, are fully vaccinated. More than a third of those have received booster shots, according to the federal Centers for Disease Control and Prevention. All nine justices have gotten booster shots and are fully vaccinated.