White House Pulls Vaccine-Or-Test Mandate Following Supreme Court Decision

The rule through the Occupational Safety and Health Administration would have applied to an estimated 84 million workers.

The White House disclosed Tuesday that it is officially withdrawing a new emergency federal rule that would have required workers at large employers to be vaccinated against COVID-19 or undergo weekly testing.

The announcement in the Federal Register comes on the heels of a recent Supreme Court decision that blocked the White House from enforcing the rule while litigation played out. The justices ruled 6-3 that the Occupational Safety and Health Administration exceeded its legal authority by putting such a vaccine-or-test mandate in place.

The decision had made the emergency rule’s future legally untenable, and the Labor Department said it was pulling the regulation ​​”after evaluating the Court’s decision” on the matter. But the agency added that it would keep the rule in place as a proposal, and pursue instituting it through the regular rulemaking process, which can take years.

The Biden administration has moved ahead with several federal vaccine rules aimed at boosting vaccination rates among workers, although several have run into trouble in court. Business groups and state GOP leaders have sued to stop them from going into effect, arguing that they curtail freedoms and require acts of Congress.

Rules applying to federal contractors and federal employees have been temporarily blocked by injunctions in federal court. But on the same day it blocked the OSHA rule, the Supreme Court ruled that the administration could proceed with a separate rule mandating vaccination for workers at health facilities that accept Medicare and Medicaid funding.

Chief Justice John Roberts poses during a group photo of the Justices at the Supreme Court in Washington, April 23, 2021.
Chief Justice John Roberts poses during a group photo of the Justices at the Supreme Court in Washington, April 23, 2021.
Erin Schaff/Pool via REUTERS

The OSHA rule was arguably the most sweeping of the regulations. Although it did not require anyone to get vaccinated — workers could show proof of a negative COVID test each week instead — it applied to a huge swath of the workforce. Businesses with at least 100 workers would have had to implement such vaccine-or-testing programs, covering an estimated 84 million workers.

The six conservative justices all joined in the decision against the Biden administration in the OSHA case, while the three liberal justices dissented. The majority argued that OSHA could not institute such a mandate because COVID-19 was not an occupational hazard but a general one.

OSHA, Justice Neil Gorsuch wrote in his opinion, was trying to “regulate not just what happens inside the workplace but induce individuals to undertake a medical procedure that affects their lives outside the workplace.”

In their dissenting opinion, Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan said the majority was substituting its own public health judgments for those of the actual experts. “If OSHA’s Standard is far-reaching — applying to many millions of American workers — it no more than reflects the scope of the crisis,” they wrote.

The rule regarding health care facilities survived by a 5-4 decision, with Chief Justice John Roberts and Justice Brett Kavanaugh joining their liberal colleagues.

The White House suffered another legal setback on the vaccine front last week, when a federal judge in Texas blocked the administration from enforcing a mandate for federal workers. The judge, an appointee of former President Donald Trump, pointed to the Supreme Court’s decision in the OSHA case, calling a vaccine requirement for federal workers “a bridge too far.”

This post has been updated to note that the White House may pursue the vaccine-or-test mandate through the regular rulemaking process.

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