The Biden administration’s coronavirus protection requirements intended to persuade millions of health-care and other workers to get vaccinated are taking center stage at the Supreme Court.
And the administration itself is asking the court to lift lower-court decisions that have blocked a vaccine mandate for health-care workers in facilities that receive Medicare and Medicaid funds. That implicates about 17 million workers.
The court has called for additional briefing in those cases by Dec. 30, which suggests rulings early in the new year.
Calls for the court’s involvement come at a time of great tension and uncertainty in the pandemic, with the highly transmissible omicron variant contributing to a sharp rise in infections and causing state and local governments to scramble.
On Monday, New York said it was experiencing a massive increase of cases, Boston imposed new restrictions on indoor activities, and Washington Mayor Muriel E. Bowser (D) reinstated the city’s mask requirement and announced a vaccination mandate for D.C. government workers.
The justices generally have been supportive of decisions by local governments and universities to require vaccination. But the court has been skeptical of federal agencies’ power to mandate pandemic-related responses. For instance, it ended a moratorium on evictions imposed by the Centers for Disease Control, saying it was beyond the agency’s authority.
The justices’s workplace has been closed to the public since March 2020; court officials say all of the justices have been vaccinated. They began hearing cases in person this fall, but with limited attendance. Lawyers arguing before the high court and credentialed reporters watching the proceedings are not required to be vaccinated but must have received negative test results.
On Friday, a divided panel of the U.S. Court of Appeals for the 6th Circuit reinstated the Biden administration’s coronavirus vaccination policy for large private businesses, reversing an earlier court ruling that had halted one of the White House’s signature efforts to reduce transmission and drive down case counts.
Almost immediately, the decision was appealed to the Supreme Court, and the justices on Monday docketed more than 10 emergency applications to stop the ruling.
The Labor Department rules say employers with more than 100 workers must require them to be vaccinated or face weekly testing and mandatory masking. There are exceptions for employees who do not work on-site or with others, and also for religious and medical reasons. The Occupational Safety and Health Administration (OSHA) relaxed the deadline for compliance to Feb. 9.
In a brief filed for 27 states, Ohio Attorney General Dave Yost (R) calls the OSHA requirement “a historically unprecedented administrative command.”
“This case does not present the question whether vaccines or vaccine mandates are wise or desirable,” he wrote. “Instead, it presents the narrow questions whether OSHA had authority to issue the mandate, and whether it lawfully exercised whatever authority it had.”
Appeals of the OSHA requirement were filed in virtually every regional court in the country and consolidated for the 6th Circuit panel to consider.
Judge Jane B. Stranch said Congress intended for OSHA to be able to impose emergency temporary standards in times of great peril.
“Vaccination and medical examinations are both tools that OSHA has historically employed to contain illness in the workplace,” wrote Stranch, a nominee of President Barack Obama.
The new requirement “is not a novel expansion of OSHA’s power; it is an existing application of authority to a novel and dangerous worldwide pandemic.”
Stranch was joined by Judge Julia Smith Gibbons, a nominee of President George W. Bush. The dissenting judge was Joan Larsen, a nominee of President Donald Trump.
“The virus that causes COVID-19 is not, of course, uniquely a workplace condition. Its potency lies in the fact that it exists everywhere an infected person may be — home, school, or grocery store, to name a few,” wrote Larsen. “So how can OSHA regulate an employee’s exposure to it?”
The requirement regarding health-care workers has gotten a mixed response in lower courts. The U.S. Court of Appeals for the 11th Circuit turned down a challenge, but two other courts have stopped the requirement from taking place in a combined 24 states.
U.S. Solicitor General Elizabeth B. Prelogar asked the justices to allow the requirement, which includes an exemption for religious and medical reasons, to take effect as scheduled on Jan. 4.
“It is difficult to imagine a more paradigmatic health and safety condition than a requirement that workers at hospitals, nursing homes, and other medical facilities take the step that most effectively prevents transmission of a deadly virus to vulnerable patients,” she wrote.
The Supreme Court has refused to shut down vaccine requirements for public employees, university students and health-care workers. The three most conservative justices have objected when the requirement does not include an exemption for religious reasons.
Besides the administration cases, the court is also being asked to stop a requirement from the San Diego school system, and a New Mexico state requirement for some of its workers.