What Supreme Court Justices Said In Blocking OSHA’s COVID-19 Workplace Rule


The Supreme Court yesterday blocked the Biden administration from implementing an order requiring companies with more than 100 employees to require COVID-19 vaccines or tests and masks for their employees.

In National Federation of Independent Business v. Occupational Safety And Health Administration, a majority of six judges granted a stay of the COVID-19 order, saying the order, known as the Temporary Emergency Standard, exceeds OSHA’s statutory authority because it targets a public with a risk to health and not a risk confined to workplaces. Nothing in the Occupational Safety and Health Act of 1970 addresses public health in general, which is outside OSHA’s sphere of expertise, they agreed.

Three dissenting judges instead concluded that the Biden administration’s emergency rule is consistent with OSHA authority and precedent, while also asserting that the ordinance is not a vaccine warrant because it allows the option of tests and masks.

In a separate decision, the court upheld a vaccine requirement for healthcare workers who are employed at medical facilities that participate in Medicare and Medicaid. The government also demanded that all federal workers be vaccinated.

OSHA had said its temporary emergency standard would protect more than 84 million workers from the spread of the coronavirus at work.

Yesterday’s ruling largely leaves it up to Congress, businesses, and states to decide what to do, if anything, though the court left the door open for OSHA to issue more stringent requirements for locations. specific work.

President Joe Biden has expressed disappointment with the decision and called on businesses and states to act.

In prepared remarks, Biden said: “The court ruled that my administration cannot use the authority given to it by Congress to demand this measure, but that does not prevent me from using my voice as President to advocate for employers to do the right thing – to protect the health and economy of Americans.

Majority decision

The majority opinion was joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

The central majority objection was that the rule went beyond the authority Congress had given to the Occupational Safety and Health Administration that issued the rule:

“Although COVID-19 is a risk that occurs in many workplaces, it is not a professional danger in most. COVID-19 can and does spread in homes, schools, sporting events, and anywhere else people congregate. This kind of universal risk is no different from the daily dangers that everyone faces from crime, air pollution or any number of communicable diseases. Allowing OSHA to regulate the hazards of everyday life – simply because most Americans have jobs and face the same risks while they work – would greatly expand OSHA’s regulatory authority without clear authorization. of Congress.

“OSHA’s blind approach ignores this crucial distinction – between occupational risk and risk more generally – and, therefore, the mandate assumes the character of a general public health action, rather than ‘a “professional safety or health standard.

However, the court added, OSHA does not lack authority to regulate occupational risks from COVID-19. Thus, OSHA could act if there is “a particular hazard due to the particular characteristics of an employee’s job or workplace” with targeted regulations. The opinion cites as examples the regulation of researchers working with the COVID-19 virus and of people working in particularly crowded or cramped environments.

“But the danger present in such workplaces differs both in the degree and in the nature of the daily risk of contracting COVID-19 that everyone faces,” the court said. “OSHA’s blind approach ignores this crucial distinction – between occupational risk and risk more generally – and, therefore, the mandate assumes the character of a general public health action, rather than ‘a “professional safety or health standard.

The six justices reiterated their view that Congress had not given the agency the power to regulate public health more broadly. “Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls into the latter category,” they concluded.

Closing a concurring opinion in which he was joined by Justices Thomas and Alito, Judge Gorsuch acknowledged that the decision comes at a time of stress:

“The question before us is not how to respond to the pandemic, but who has the power to do it. The answer is clear: Under the law as it stands today, that power rests with states and Congress, not OSHA. In saying this, we do not dispute the intentions underlying the agency’s mandate. Instead, we are only fulfilling our duty to apply the requirements of the law when it comes to the question of who can rule the lives of 84 million Americans. Meeting these requirements can be overwhelming in times of stress. But if this Court were to respect them only under quieter conditions, declarations of emergency would never end and the freedoms that the separation of powers in our Constitution seeks to preserve would be little. “

Dissenting opinion

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented, saying the rule is under OSHA’s authority and OSHA has done what Congress told it to do in the 1970 laws and more recently in COVID-19 legislation: it has taken action to combat COVID- The threat of 19 in workspaces.

Nothing in the text of OSHA’s law supports limiting the majority to OSHA’s regulatory authority, the dissenters argue, adding that the law is “irrelevant whether a hazard occurs at the scene. work is also found elsewhere “.

Citing the 1970 law, they argued that the virus that causes COVID-19 is a “new danger” as well as a “physically harmful” “agent” and that the virus is also a “serious danger” to millions. of employees. In addition, as the law requires, the standard is “necessary” to deal with the danger of COVID-19 and is based on a multitude of studies and government reports showing why these measures of vaccines, tests and masks are “of unprecedented utility in limiting the threat of COVID-19 in most workplaces,” they wrote.

They argued that by suspending the rule, the tribunal acts “outside its jurisdiction and without legal basis, overriding the judgments of government officials responsible for responding to health emergencies in the workplace.”

Nothing in the text of OSHA’s law supports limiting the majority to OSHA’s regulatory authority, the dissenters argue, adding that the law is “irrelevant whether a hazard occurs at the scene. work is also found elsewhere “.

They argued that OSHA has a long history of regulating risks that arise both inside and outside the workplace, and argued that COVID-19 is spreading more widely in the workplace than other income “because more people are spending more time together. Most importantly, employees generally have little or no control over these parameters. “

Dissent says “virtually every workforce and workplace” has been transformed by COVID-19, with employers and employees responding to the risks of transmission in work environments. “It is perverse, given these circumstances, to read the granting of emergency powers by law the way the majority do, as preventing OSHA from tackling one of the most serious risks. serious in the workplace in the history of the agency, ”they insisted. “He is at the heart of OSHA’s authority. This is part of the agency’s raison d’être.

Health and social services

In the other COVID-19 cases decided yesterday, the Supreme Court, by a 5-4 vote, found that the Department of Health and Human Services had not overstepped its authority with its vaccine mandate for workers of health. (The case is Joseph R. Biden, Jr., President of the United States, Et al., V. Missouri, et al.)

In November 2021, the secretary of HHS, which administers the Medicare and Medicaid programs, announced that in order to receive Medicare and Medicaid funding, participating institutions must ensure that their staff, unless exempted for medical or religious reasons, is vaccinated against COVID-19.

The HHS released the rule after finding that vaccinating healthcare workers against COVID-19 was “necessary for the health and safety of those to whom care and services are provided.” The HHS found that in many facilities, 35% or more of staff were still unvaccinated and that such staff posed a serious threat to patient health and safety. The court noted that this determination was based on data showing that the COVID-19 virus can spread rapidly among healthcare workers and from them to patients, and that such spread is more likely when healthcare workers health are not vaccinated.

The HHS also argued that, because Medicare and Medicaid patients are often elderly, disabled, or in poor health, the transmission of COVID-19 to these patients is particularly dangerous.

Majority of judges agreed with government that HHS Secretary’s Rule falls under powers bestowed by Congress on HHS Secretary, which has shown that a vaccine warrant would significantly reduce the likelihood of healthcare workers contracting the virus and pass it on to their patients.

“The rule therefore fits perfectly into the wording of the law. After all, making sure providers take steps to avoid transmitting a dangerous virus to their patients is in keeping with the fundamental principle of the medical profession: First, do no harm. This would be “the complete opposite of an effective and efficient administration for an establishment supposed to treat people to make them sick with COVID-19”, affirms the majority opinion.

Justices Clarence Thomas, Amy Coney Barrett, Samuel Alito and Neal Gorsuch dissented in the case, saying the rule exceeded the authority of the HHS.

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