The United States Supreme Court heard arguments in two cases Friday that will help sort out whether the federal government has the authority to mandate broadly that certain workers be vaccinated against Covid-19 – or in some circumstances submit to regular testing for the virus – as a condition of continued employment.
Multiple conservative states, including Oklahoma, brought lawsuits against the Biden administration following the publication of new rules requiring, on one hand, that all workers at healthcare facilities that receive Medicare or Medicaid funding be fully vaccinated, and on the other, that businesses with 100 or more employees make certain that each worker is either vaccinated or tested weekly for covid.
With regard to the rule affecting medium to large private businesses, issued by the Occupational Health and Safety Administration (OSHA) in November and scheduled to go into effect on Monday, the Court must decide whether to temporarily halt its enforcement. The 5th Circuit Court of Appeals had issued a stay on the rule days after its publication, but more recently the 6th Circuit lifted the stay, affirming what the administration agrees is the agency’s congressionally mandated authority: “To protect workers, OSHA can and must be able to respond to dangers as they evolve,” the Court wrote.
Friday, lawyers representing the 27 plaintiff states and business organizations challenging the rule said that covid endangers people wherever there is human interaction, not just in the workplace, so it is beyond OSHA's authority to decide how best to protect Americans.
Moreover, they said, the practical impact of the rule will be to do more harm to businesses than any good that would come from inoculating workers.
"OSHA's economy-wide mandate would cause permanent worker displacement rippling through our national economy," said Scott Keller, an attorney representing business associations, "which is already experiencing labor shortages and fragile supply lines."
In the case of the rule for health care workers, issued by the Centers for Medicare and Medicaid Services (CMS) also in November, federal judges in Missouri and Louisiana blocked its enactment and a CMS appeal to the Eighth Circuit Court failed to get it reversed. Last month the federal government petitioned the Supreme Court to stay those injunctions.
"Americans shouldn't be forced to choose between getting medical care and exposing themselves unnecessarily to a virus," argued Brian Fletcher, the U.S. Principal Deputy Solicitor General.
But opponents of the CMS rule argue it will cause many medical professionals to quit, which will make it even harder to help Americans who are sick, especially in lesser populated regions of the country.
"Without the injunction," said Jesus Osete, Deputy Attorney General of Missouri, "rural America will face an imminent crisis."
The Court's three liberal Justices made clear they believe it would be a grave mistake to prevent the mandates from taking effect. The conservative-majority court seemed to agree.
"I would find it, you know, unbelievable that it could be in the public interest to suddenly stop these vaccinations," said Justice Stephen Breyer.
But the Court's conservative majority made it just as clear that, while they may not go so far as to completely undermine the mandates, they tend to agree that they were a step too far.
"It appears that the federal government is going agency by agency as a work-around to its inability to get congress to act," said Justice Neil Gorsuch.
While the Supreme Court normally takes months to release its decisions, the decisions in these cases are expected within weeks, or even days, given the sensitive timing of the mandates and their enforcement.