Bloomberg Law
Jan. 7, 2022, 4:52 PM

Biden’s Shot-or-Test Rule Questioned by Skeptical Chief Justice

Robert Wilkens-Iafolla

Chief Justice John Roberts sharply questioned the Biden administration’s multifaceted approach to boosting Covid-19 vaccinations across U.S. workplaces during arguments before the Supreme Court Friday, suggesting it should mainly be states’ responsibility.

Roberts said that “it’s a little hard to accept the idea that” rules calling for vaccinations are particular to any one federal agency because several are involved. He cited the shot-or-test rule for large employers, the vaccine mandates for federal contractors, and the shot requirement for workers in facilities that receive government health-care funds.

“It seems to me that the government is trying to work across the waterfront, and it’s just going agency by agency,” Roberts said.

Roberts said Congress should have a say and that it should be the primary responsibility of states.

Solicitor General Elizabeth Prelogar, who was representing the Biden administration, said the threat of Covid-19 exists in many contexts, but that doesn’t rob the Occupational Safety and Health Administration of its power to regulate that hazard.

“No, it’s not so much that OSHA has less power, it’s that the idea that this is specific to particular agencies really doesn’t hold much water when you’re picking them off one-by-one,” Roberts said.

The court is in the midst of oral arguments over President Joe Biden’s shot-or-test rule for large employers, a cornerstone piece of his administration’s plan to increase the country’s vaccination rate as the omicron variant propels an unprecedented spike in cases.

The OSHA rule requires employers with 100 or more workers to make them get vaccinated or be tested regularly, potentially at their own expense.

The rule is set to kick in Monday, though OSHA has said it won’t issue citations on employers who are trying in good faith to comply with the testing requirements until at least Feb. 9.

The justices will also hear arguments Friday in a related case involving the administration’s vaccine mandate for workers in facilities that receive government health-care funds.

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Seth Stern

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