Bloomberg Law
Jan. 7, 2022, 8:49 PM

Supreme Court Casts Doubt on Biden’s Workplace Shot Rule (2)

Greg Stohr
Greg Stohr
Bloomberg News

The U.S. Supreme Court cast doubt on the linchpin of President Joe Biden’s push to get more people vaccinated amid a Covid-19 surge, questioning whether the Occupational Safety and Health Administration had authority to require that 80 million workers get shots or regular tests.

In a special argument session Friday, the court’s conservative justices voiced skepticism about the rule, which business groups and Republican-led states say exceeds the workplace-safety agency’s authority.

The pandemic “sounds like the sort of thing that states will be responding to or should be, and that Congress should be responding to or should be, rather than agency by agency the federal government and the executive branch acting alone,” Chief Justice John Roberts said.

The initiative represents the heart of Biden’s plan to increase the country’s vaccination rate as the omicron variant propels a spike in cases. The U.S. Centers for Disease Control and Prevention says only 62% of the country is fully vaccinated and of that group just 35% have received a booster shot.

The questioning was more mixed on a separate administration rule that would require shots for workers in nursing homes and other facilities that receive Medicare and Medicaid payments from the government. Roberts suggested he saw a “close connection” between the vaccine and the goals of those health-care programs.

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 until at least Feb. 9 to employers who are trying in good faith to comply with the testing requirements. The court could rule in a matter of days.

The showdown marks the first time in decades the court has heard arguments on emergency requests for a stay without ordering the full briefing that occurs when cases are heard on the merits.

Testing Positive

Underscoring the reach of the virus, two lawyers opposing the Biden rules, Ohio Solicitor General Benjamin Flowers and Louisiana Solicitor General Elizabeth Murrill, argued by phone Friday after being tested.

A spokeswoman for Flowers said he tested positive after Christmas and the virus was detected when he was tested again Thursday. A spokesman for Murrill said she was arguing remotely “in accordance with the COVID protocols of the court.” The court requires arguing lawyers to get a PCR test the day before a session and to participate by telephone in the event of a positive test.

Justice Sonia Sotomayor, who has type 1 diabetes, took part in the arguments from her office, rather than the courtroom.

In a change from previous in-person arguments, seven of the other eight justices -- all but Neil Gorsuch -- wore masks as they took the bench. Justice Clarence Thomas and Samuel Alito took off their masks once seated, while others wore theirs for the entire argument or when they weren’t speaking. Previously only Sotomayor wore a mask on the bench.

A Supreme Court spokesman said this week that all nine justices have received booster shots.

The court has been receptive to targeted vaccine mandates issued by state and local officials, repeatedly rejecting religious objections. But the latest cases involve very different issues, centering on the power of federal agencies whose governing statutes don’t explicitly authorize vaccine requirements.

“Traditionally, states have had the responsibility for overseeing vaccination mandates,” said Gorsuch, citing his own rejection on Dec. 21 to a challenge to New Mexico’s shot requirement for health-care workers.

“Congress’s had a year to act on the question of vaccine mandates already,” Gorsuch said. “As the chief justice points out, it appears that the federal government is going agency by agency as a workaround to its inability to get Congress to act.”

Emergency Rule

The court’s liberals suggested they were exasperated at the suggestion that federal agencies couldn’t broadly respond to a pandemic that has killed more than 800,000 people in the country.

“It is by far the greatest public health danger that this country has faced in the last century,” Justice Elena Kagan said. “More and more people are dying every day. More and more people are getting sick every day. I don’t mean to be dramatic here. I’m just sort of stating facts.”

Justice Brett Kavanaugh pointed to the absence of any explicit authorization for OSHA to impose vaccine requirements, drawing a contrast with statutes that govern immigration and the military. “Congress has specifically referred to vaccines in a variety of contexts,” he said.

The administration says its vaccine rules are key steps toward getting the pandemic under control.

“Number one, legal experts say that we clearly have legal authority to do it,” Labor Secretary Marty Walsh in an interview on Bloomberg TV with Jonathan Ferro Friday. “Number two, medical experts support us as well on this. And number three, getting this passed would be a tremendous help to making sure we keep people safe.”

OSHA issued the rule as a so-called emergency temporary standard, or ETS. Under federal law, the agency can put an ETS in place immediately for six months but must meet a more demanding legal test by showing it is “necessary” to protect employees from “grave danger.”

Twenty-six business groups led by the National Federation of Independent Business contend that OSHA didn’t meet that test and that Congress didn’t provide clear authorization for such a sweeping mandate.

Ohio is leading a separate group of 27 states challenging the OSHA rule. They say the rule interferes with states’ prerogative to develop their own vaccine policies.

OSHA estimated before the omicron variant emerged that the standard would save more than 6,500 worker lives over six months.

‘Kill Your Patients’

The health-care rule, issued by the Centers for Medicare & Medicaid Services, is being challenged by separate groups of states led by Missouri and Louisiana. The rule requires facilities to provide medical and religious exemptions.

As with the OSHA rule, the court’s liberals voiced support for the health-care requirement.

“All the secretary is doing here is to say to providers, you know what, basically, the one thing you can’t do is to kill your patients,” Kagan said. “So you have to get vaccinated so that you’re not transmitting the disease that can kill elderly Medicare patients, that can kill sick Medicaid patients. That seems like a pretty basic infection prevention measure.”

Justice Amy Coney Barrett questioned why CMS issued an “omnibus rule” rather than a more targeted approach to account for the different types of facilities that receive Medicare and Medicaid funds.

The OSHA cases are National Federation of Independent Business v. Department of Labor, 21A244, and Ohio v. Department of Labor, 21A247. The CMS cases are Biden v. Missouri, 21A240, and Becerra v. Louisiana, 21A241.

(Updates to reflect conclusion of second argument starting in fifth and sixth paragraphs.)

--With assistance from Allison Reed.

To contact the reporters on this story:
Greg Stohr in Washington at;
Robert Wilkens-Iafolla in Arlington at;
Kimberly Robinson in Arlington at

To contact the editors responsible for this story:
Elizabeth Wasserman at

Jon Morgan

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