During the first week of January, the Supreme Court began hearing expedited arguments in cases related to President Biden’s mandates regarding COVID-19 vaccinations. Before the court are challenges to the Biden Administration’s Occupational Safety and Health Administration (OSHA) and the Centers for Medicare & Medicaid Services (CMS) mandates.
Both mandates were designed to increase the number of vaccinated employees, reducing the potential spread of COVID and its variants. These mandates are being challenged by small businesses, large businesses, individuals and 27 states. Most of the states challenging both mandates are Republican-controlled.
In November, the Department of Labor announced that OSHA would require employers with 100 or more employees to be vaccinated against COVID-19 or be tested on a weekly basis. As part of this mandate, OHSA requires employers to arrange a time during the workday for their employees to receive the vaccine, paying employees for their time. Under this mandate, OHSA also requires employers to make all unvaccinated employees wear masks while they are in their workplace. It is estimated that this mandate covered 84 million workers across the U.S. Exceptions are permitted by employees who work outside or work from home. This mandate is expected to be enforced by the Biden Administration on January 17, 2022. Opponents hope that the court will present their ruling prior to enforcement beginning.
Those presenting arguments in support of this mandate argue that the OSHA mandate was enacted under a statute that allows OSHA to issue urgent rules when necessary to protect employees from danger. This same statute was used to require employers to pay for Hep-B vaccines for employees who are at risk of contracting Hep-B while at work.
Chief Justice John Roberts responded that this mandate is “something the federal government has never done before.” The Chief Justice and conservative justices indicated that the regulation went too far. If the Biden Administration was going to enact a new statute regarding vaccinations or testing, Congress should have been the mechanism that enacted one. Additionally, the conservative justices have suggested that OHSA, passed in 1970, was not created to authorize this type of emergency action.
The Biden Administration has argued that it was obligated to act and reduce the risk of contracting COVID-19 at work under OSHA. It is estimated that more than 800,000 Americans have died since the pandemic began. More than 50 million have become ill, some with long-haul COVID.
Justice Elena Kagan conveyed that “nearly a million people have died” in the pandemic so far. “It is by far the greatest public health danger that this country has faced in the last century,” she said. Justice Kagan, a liberal justice, conveyed this point when the conservative majority justices, including Justice Clarence Thomas, questioned whether the OHSA mandate of receiving a vaccine or weekly testing was necessary.
Centers for Medicare & Medicaid Services Mandate
The Centers for Medicare & Medicaid Services (CMS) at the Department of Health and Human Services also announced in November that health care workers who work at facilities that are a part of these programs are required to be fully vaccinated. Facilities include health care locations like hospitals and long-term care homes. It’s estimated that there are 76,000 facilities that this mandate applied to, covering more than 17 million workers. The only exception to this mandate is staff with medical or religious exceptions.
Opponents of the CMS mandate argue that this will force millions of health care workers out of much-needed health care roles. The Biden Administration has argued that studies highlight that less than one percent of healthcare employees have left their positions due to vaccine mandates. The Houston Methodist Hospital system imposed a vaccine mandate on their staff of 61,000. Of their total number of employees, only 153 employees resigned.
It is believed that the CMS mandate is different from the OHSA mandate. The CMS mandate is based on a long-held principle that when the government funds a program, the government can place conditions on how the funds are used. In this case, because the government funds Medicare, the Biden Administration can put conditions on the employees – like requiring vaccinations. Justice Kagan argued that the government is saying to health care providers that “basically, the one thing you can’t do is kill your patients, so you have to get vaccinated.”
The 6th Circuit Court of Appeals in Cincinnati lifted the injunction against OSHA’s COVID vaccination mandate issued by a lower court. This court blocked the OSHA rule. As such, the Supreme Court was asked to intervene. It is expected that the Supreme Court will issue their decisions in short order as these proceedings were expedited.