Supreme Court strikes down vaccine requirement for most private employers, upholds it for health workers

Supreme Court strikes down vaccine requirement for most private employers, upholds it for health workers

The Supreme Court today blocked the Biden administration’s coronavirus vaccine mandate for private businesses (employers with more than 100 workers) but rejected a legal challenge to a separate Biden administration rule that requires healthcare workers to get vaccinated.

In NFIB v. Department of Labor, the Supreme Court ruled against the coronavirus vaccine mandate for private businesses with more than 100 workers (employees who remain unvaccinated are required to wear masks and submit to regular coronavirus testing) that was issued by the Occupational Safety and Health Administration. This decision was a 6-3 ruling, with all six Republican-appointed justices in the majority, and the three Democratic appointees dissenting. Here is the pivotal passage in the majority opinion:

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. 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.

“We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” …. There can be little doubt that OSHA’s mandate qualifies as an exercise of such authority.

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. See 29 U. S. C. §655(b) (directing the Secretary to set “occupational safety and health standards” (emphasis added)); §655(c)(1) (authorizing the Secretary to impose emergency temporary standards necessary to protect “employees” from grave danger in the workplace).

Confirming the point, the Act’s provisions typically speak to hazards that employees face at work….And no provision of the Act addresses public health more generally, which falls outside of OSHA’s sphere of expertise.

That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face. OSHA’s indiscriminate approach fails to account for this crucial distinction— between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard.” 29 U. S. C. §655(b)….

Had the Supreme Court ruled the other way, upholding the mandate, that would have set a dangerous precedent, giving OSHA sweeping control of virtually all workplace conditions, and totally supplanting state primacy in these areas.

The three dissenting justices rejected the majority’s distinction between dangers specific to the workplace, and those that also exist elsewhere, saying that distinction is not found in the OSHA statute.

A better reason for the Supreme Court’s ruling might have been that the sweeping nature of the OSHA mandate meant that many of the workers covered don’t actually face a “grave danger,” as required by the ETS statute. Moreover, employees can easily mitigate any danger simply by getting vaccinated voluntarily

In a concurring opinion, Justice Neil Gorsuch and the two most conservative justices argued that the OSHA mandate also violates the nondelegation doctrine rooted in the Constitutional separation of powers.

In  Biden v. Missouri, the Supreme Court upheld the health worker vaccination mandate in a 5-to-4 vote. Republican-appointed Chief Justice Roberts and Justice Brett Kavanaugh joined the three Democratic justices in the majority:

Congress has authorized the Secretary to impose conditions on the receipt of Medicaid and Medicare funds that “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.” 42 U.S. C. §1395x(e)(9).* COVID–19 is a highly contagious, dangerous, and—especially for Medicare and Medicaid patients—deadly disease. The Secretary of Health and Human Services determined that a COVID–19 vaccine mandate will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients...He accordingly concluded that a vaccine mandate is “necessary to promote and protect patient health and safety” in the face of the ongoing pandemic.

The rule thus fits neatly within the language of the statute. After all, ensuring that 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. It would be the “very opposite of efficient and effective administration for a facility that is supposed to make people well to make them sick with COVID–19″…The States and JUSTICE THOMAS [in his dissent] offer a narrower view of the various authorities at issue, contending that the seemingly broad language cited above authorizes the Secretary to impose no more than a list of bureaucratic rules regarding the technical administration of Medicare and Medicaid.

But the longstanding practice of Health and Human Services in implementing the relevant statutory authorities tells a different story. As noted above, healthcare facilities that wish to participate in Medicare and Medicaid have always been obligated to satisfy a host of conditions that address the safe and effective provision of healthcare, not simply sound accounting.

When asked at oral argument whether the Secretary could, using the very same statutory authorities at issue here, require hospital employees to wear gloves, sterilize instruments, wash their hands in a certain way and at certain intervals, and the like, Missouri answered yes… Of course the vaccine mandate goes further than what the Secretary has done in the past to implement infection control. But he has never had to address an infection problem of this scale and scope before. In any event, there can be no doubt that addressing infection problems in Medicare and Medicaid facilities is what he does.

 Vaccination requirements are a common feature of the provision of healthcare in America: Healthcare workers around the country are ordinarily required to be vaccinated for diseases such as hepatitis B, influenza, and measles, mumps, and rubella... As the Secretary explained, these preexisting state requirements are a major reason the agency has not previously adopted vaccine mandates as a condition of participation.

As a law professor notes, “There may be cases in which there is ambiguity about whether a given regulation really advances the ‘health and safety’ of patients. In such a case, the condition could not be imposed on state government-controlled facilities, because it would violate the longstanding requirement – embedded in the Supreme Court’s Spending Clause jurisprudence – that such conditions must be clearly stated. But vaccination to limit the spread of a deadly disease to which many hospital and nursing home residents are unusually vulnerable is not a borderline case. It’s an easy one. If anything advances the “health and safety” of patients, this surely does.”

LU Staff

LU Staff

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