January 13, 2022 – The US Supreme Court on Thursday blocked President Joe Biden’s vaccination mandate for big companies but said a similar could be continued while challenges to the rules pass through lower courts.

The vote was 6-3 to block the big business mandate and 5-4 to allow a similar mandate for healthcare workers carry on for now. Only healthcare workers at facilities that receive federal funding through Medicare or Medicaid are affected, but this includes large swathes of the nation’s healthcare industry.

Biden’s proposed corporate vaccination mandate included all companies with more than 100 employees. These companies would need to ensure employees were either vaccinated or tested weekly for COVID-19.

In its decision, the majority of the court described the plan as a “blunt instrument”. The Occupational Health and Safety Board was supposed to enforce the rule, but the court ruled that the mandate was outside the agency’s purview.

“OSHA has never imposed such a mandate before. Neither does Congress. Although Congress has enacted significant legislation to address the COVID-19 pandemic, it has declined to take action similar to what OSHA has promulgated here,” the majority wrote.

The court said the mandate was “not an ‘everyday exercise of federal authority'”. It is instead a significant intrusion into the lives – and health – of a large number of employees.”

Biden said in a statement following the verdicts when he first called for the mandates, 90 million Americans were unvaccinated. Today there are fewer than 35 million.

“Had my government not introduced vaccination requirements, we would now be seeing a higher death toll from COVID-19 and even more hospital admissions,” he said.

The mandate for companies is a “very modest burden” as it does not require vaccination but rather vaccination or testing.

But Karen Harned, executive director of the National Federation of Independent Businesses’ Small Business Legal Center, welcomed the ruling.

“As small businesses try to recover after nearly two years of significant business disruption, the last thing they need is a mandate that would create further business challenges,” she said.

NFIB is one of the original plaintiffs challenging the mandate.

Anthony Kreis, PhD, a professor of constitutional law at Georgia State University in Atlanta, said the ruling shows that “the court fails to understand the unprecedented situation that the pandemic has created and unnecessarily impedes the government’s ability to function.

“It is hard to imagine a situation more in need of urgent action than a national public health emergency, which the majority of the court does not seem to appreciate.”

The American Medical Association seems to agree. The association’s president, Gerald Harmon, MD, welcomed the healthcare mandate decision, saying in a statement he was “deeply disappointed that the court blocked the Occupational Safety and Health Administration’s temporary emergency standard of COVID-19 vaccination and testing for large corporations to move forward.” .”

“Workplace transmission has been a major factor in the spread of COVID-19,” Harmon said. “More than ever, workers in all sectors across the country need sound, evidence-based protection against COVID-19 infections, hospitalizations and deaths – especially those who are immunocompromised or unable to get vaccinated due to illness.”

While the Biden administration argued that COVID-19 was an “occupational hazard” and therefore subject to OSHA’s regulatory authority, the court disagreed.

“Although COVID-19 is a risk common to many workplaces, in most cases it is not an occupational hazard. COVID-19 can and will spread in homes, schools, sporting events and anywhere else people gather,” the judges wrote.

This kind of universal risk, they said, “is no different from the everyday dangers that everyone faces from crime, air pollution, or a range of communicable diseases.”

But in dissent, Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan said COVID-19 “spreads in confined spaces, causing harm in almost any work environment.” And in these environments, more than in any other, individuals have little control and therefore little ability to mitigate risk.”

This means, according to the minority, that COVID-19 “poses a threat in the work environment”.

OSHA, they said, is charged with “protecting” “employees” from “serious hazards” from “new hazards” or exposure to harmful substances. COVID-19 certainly counts as such.

“The court’s order seriously disregards applicable legal norms,” ​​says the objection. “And in doing so, it hampers the federal government’s ability to address the unprecedented threat that COVID-19 poses to our nation’s workers.”

To maintain the vaccination mandate for healthcare workers, the court said the Department of Health and Human Services’ requirement was within the agency’s power.

“Finally, 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,” the judges wrote.

Disagreeing with the majority, Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Cohen Barrett said Congress never intended the department to have such power.

“If Congress had wanted to grant [HHS] Authority to issue a nationwide vaccination mandate and thus change the state-federal balance, it would have said so clearly. That was not the case,” the judges wrote.

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