The U.S. Supreme Court on Thursday reversed an appellate decision and granted a stay of the Biden administration vaccine mandate for workplaces with 100 or more employees.
The 6-3 ruling in National Federation of Independent Business, et al., v. Department of Labor, Occupational Safety and Health Administration, Nos. 21A244 and 21A247, means employers don’t have to require employees get the COVID-19 vaccine, Luke Wake, an attorney with the Pacific Legal Foundation, said in an email response to the Northern California Record.
“[The] decision was of huge practical significance for employees subject to OSHA’s mandate to either vaccinate or (at their own expense) obtain weekly COVID-19 tests a condition continued lawful employment,” Wake said. “They were facing a Hobson’s choice between losing their jobs and submitting to a medical procedure to which they objected.
“And there were many who were defiantly going to choose to exit the labor market or look for jobs elsewhere to avoid the mandate, which meant employers were anxious about what it would mean for their workforce in an already tight market.”
Many businesses have already adopted vaccine requirements without federal regulation to do so.
“But thinking bigger picture, the significance of the decision was in affirming separation of powers, and the fundamental principle that Congress should be deciding the truly momentous issues,” Wake said. “The opinion makes clear that we can’t construe general statutory language as an elastic authority to regulate on issues of vast economic and social importance; Congress must speak clearly if it intends to authorize this sort of regulation.”
As the ruling states, “The question, then, is whether the [Occupational Safety and Health] Act plainly authorizes the [Labor] Secretary’s mandate. It does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures.”
Wake noted the OSHA Act allows for emergency regulation (“Emergency Temporary Standards”) that bypass usual procedural rules only where an agency has determined that the employees are exposed to a “grave danger” and that an ETS is “necessary.”
”So OSHA argued COVID-19 represented a grave danger to unvaccinated employees and that a vaccine mandate was necessary to abate the danger,” Wake said.
But the high court noted OSHA sought to apply the mandate without “clear delegation” from Congress.
“If Government is going to impose a vaccine mandate, it must come from Congress—not the Executive Branch,” Wake said. “[The] opinion affirmed that agencies are ‘creatures of statute’ and have no authority but what Congress gives. And it’s simply inappropriate to construe general language as conferring sweeping open-ended powers, especially when it comes to regulation of vast economic and social consensus because in our system it is the role of Congress to weigh and decide fundamental policy.”
Wake noted that in broad terms, OSHA clearly was operating outside of its lane.
“Congress gave OSHA a specific mission to protect employees from workplace-specific dangers, not to address the entire universe of public health issues that affect individuals who may happen to work,” Wake said.
In a separate ruling, Joseph R. Biden, President of the United States et al., v. Missouri, et al., Case No. 21C241, the high court upheld a vaccine rule for health care workers. The 5-4 decision holds that in order to receive federal funding from Medicare and Medicaid, facilities must require employees be inoculated against COVID-19, unless medical or religious exemptions apply.