In early November, President Biden issued two sweeping federal rules aimed at getting as many workers as possible vaccinated against COVID-19. Whether those controversial rules survive is now in the hands of the Supreme Court.
The justices are scheduled to hear oral arguments Friday in a pair of cases revolving around the emergency regulations. Republican leaders and business groups sued to stop the rules from going into effect, leading to injunctions and differing opinions in the lower courts. After groups filed emergency requests with the Supreme Court, the justices decided to expedite both of the hot-button cases and hear them together this week.
The special session is meant to determine whether the Biden administration can enforce the vaccine rules while that litigation plays out, but the underlying question is whether or not the White House has the legal authority to issue the rules in the first place.
An estimated 86% of U.S. adults have received at least one dose of a COVID-19 vaccine, according to The New York Times. But the administration says that rate needs to be higher, especially amid a surge in cases due to the omicron variant, and the vaccine rules are central to the White House effort to get remaining holdouts inoculated.
How The Vaccine Rules Would Work
Both of the administration’s rules are employer mandates, but only one is a true vaccine mandate.
That rule, issued through the Centers for Medicare and Medicaid Services, requires that workers in health care facilities that receive Medicare or Medicaid funding get vaccinated. If workers don’t get the jab, then their federally funded employers can’t let them work. The White House estimates the rule would cover 17 million workers at 76,000 sites, including hospitals, long-term care facilities and dialysis centers, among others.
In explaining the rule, the administration said it would bring peace of mind to patients wondering about their caregivers’ vaccination status, reduce staff sickness and quarantines and “create a level playing field across health care facilities.”
The other vaccine regulation is less stringent but far more expansive. The rule administered by the Occupational Safety and Health Administration would require employers with at least 100 workers to create programs in which workers either show proof of vaccination or undergo weekly testing for COVID-19. The employers would also have to offer workers paid time off to get their shots, and make sure that unvaccinated workers wear a mask in the workplace.
“The White House estimates the OSHA rule would cover 84 million workers.”
The OSHA rule is really a vax-or-test mandate; technically no one would be obligated to get a shot because of it. Still, the hassles of weekly testing might make vaccination more appealing, and that’s almost certainly part of the idea. At-home COVID-19 tests would be accepted so long as they’re done at the worksite or proctored online, but such tests can be hard to find right now. Employers aren’t obligated to foot the bill for testing under the rule.
The White House estimates the OSHA rule would cover 84 million workers, most of them in the private sector, but many in the public sector as well, including the U.S. Postal Service. Employers who failed to follow it would be subject to fines — up to around $13,700 in most cases — but the agency said it expects the vast majority of firms to comply with it willingly. Indeed, many large employers have already instituted mandates on their own.
OSHA has estimated that the rule would save 6,500 lives and prevent 250,000 hospitalizations over a span of six months.
Republicans in Congress are so opposed to the OSHA rule that they briefly considered using a government shutdown as leverage to kill it.
The Arguments Against The Mandates
The Supreme Court, which currently holds a 6-3 conservative majority, has already declined to knock down state vaccine mandates for workers instituted during the pandemic. But the cases involving Biden’s vaccine rules hinge on a different issue: whether the relevant federal agencies have the statutory power to implement them.
A slew of business groups and states, the vast majority GOP-led, have sued to stop both rules on the grounds that they exceed the legal authority of OSHA and CMS. The OSHA rule was blocked temporarily by one appeals court, then later reinstated by another. The CMS rule was blocked in roughly half the states but allowed to move forward in the other half.
One of the loudest opponents of the OSHA rule is the conservative Liberty Justice Center, which says it aims to “protect workers’ rights and free speech” and “combat cancel culture and government overreach.” The group and other critics of the rule argue in part that COVID-19 is far more than a workplace hazard, and a mandate to vaccinate or test would require an act of Congress.
The group succeeded in getting a stay against the rule in November when a panel for the New Orleans-based Fifth Circuit Court of Appeals ruled that there was “cause to believe there are grave statutory and constitutional issues with the Mandate.” Two of the three judges were appointed by former President Donald Trump.
However, that stay was lifted by another panel at the Fifth Circuit Court of Appeals, which found that the Occupational Safety and Health Act of 1970 gave OSHA the authority to protect against infectious disease, regardless of whether it’s a hazard beyond the workplace.
They wrote that OSHA’s authority “is hardly limited to ‘hard hats and safety goggles.’ OSHA has wide discretion to form and implement the best possible solution to ensure the health and safety of all workers, and has historically exercised that discretion.”
The arguments against the CMS rule track along similar lines. Opponents claim that given the economic and political significance of the regulation, CMS would need express permission from Congress to issue it. A federal judge in Missouri — also a Trump appointee — agreed, saying the agency exceeded its authority and that the plaintiffs were likely to succeed on their argument that the rule is “arbitrary and capricious.”
“The litigation surrounding both rules hasn’t left employers with much clarity on what to expect.”
The Biden administration says the CMS rule is meant to protect patients, and argues that the agency has clear authority to do so at facilities that accept Medicare and Medicaid dollars. Xavier Becerra, head of the Department of Health and Human Services, which includes CMS, estimated that the rule would save “several hundred ... or perhaps several thousand” lives each month.
The litigation surrounding both rules hasn’t left employers with much clarity on what to expect.
OSHA said it will not issue citations for any part of the rule before Jan. 10, and won’t enforce the weekly testing requirement until Feb. 9. And while CMS is already enforcing its rule in the states where it can, the agency is giving health care facilities a runway of several weeks to reach 100% vaccination rates before they can be fined or lose federal funding.
The Supreme Court is expected to rule quickly on the cases, and their decisions could change those timelines further, or render them moot.