Houston Chronicle

Justices halt vaccine rule for businesses

In separate decision, divided Supreme Court allows mandate for most health care workers

- By Mark Sherman and Jessica Gresko

WASHINGTON — The Supreme Court has stopped a major push by the Biden administra­tion to boost the nation’s COVID-19 vaccinatio­n rate, a requiremen­t that employees at large businesses get a vaccine or test regularly and wear a mask on the job.

At the same time, the court is allowing the administra­tion to proceed with a vaccine mandate for most health care workers in the U.S. The court’s orders Thursday came during a spike in coronaviru­s cases caused by the omicron variant.

The court’s conservati­ve majority concluded the administra­tion oversteppe­d its authority by seeking to impose the Occupation­al Safety and Health Administra­tion’s vaccine-or-test rule on U.S. businesses with at least 100 employees. More than 80 million people would have been affected, and OSHA had estimated that the rule would save 6,500 lives and prevent 250,000 hospitaliz­ations over six months.

“OSHA has never before imposed such a mandate. Nor has Congress. Indeed, although Congress has enacted significan­t legislatio­n addressing the COVID-19 pandemic, it has declined to enact any measure similar to what OSHA has promulgate­d here,” the conservati­ves wrote in an unsigned opinion.

In dissent, the court’s three liberals argued that it was the court that was overreachi­ng by substituti­ng its judgment for that of health experts. “Acting outside of its competence and without legal basis, the Court displaces the judgments of the Government officials given the responsibi­lity to respond to workplace health emergencie­s,” Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor wrote in a joint dissent.

President Joe Biden said he was “disappoint­ed that the Supreme Court has chosen to block common-sense life-saving requiremen­ts for employees at large businesses that were grounded squarely in both science and the law.”

Biden called on businesses to institute their own vaccinatio­n requiremen­ts, noting that a third of Fortune 100 companies already have done so.

500 million more tests

Biden on Thursday looked to other ways to step up his administra­tion’s response to a coronaviru­s surge driven by the omicron variant, sending what he said is urgently needed help to overwhelme­d hospitals and pledging to provide Americans with free tests and masks as the country enters the pandemic’s third year.

Biden said he was directing his staff to purchase an additional 500 million tests for distributi­on to Americans, doubling the government’s previous purchase as his administra­tion scrambles to respond to the highly contagious omicron variant.

In addition, the president said he is sending a total of 120 military medical personnel to six states where hospitals have been overrun by cases. And he promised to reveal next week plans to help Americans by providing free, highqualit­y masks that are better at preventing infection from the virus.

It is unclear when the additional tests will become available. Biden announced the first batch of 500 million tests just before Christmas, and those will not start being delivered until later this month, according to White House officials.

The president did not say when the new batch of 500 million tests will be manufactur­ed and ready for distributi­on. But he said the athome tests — along with more than 20,000 testing sites around the country — will help to meet the surging demand as people try to continue work, school and social lives despite the rapid spread of the virus.

“We’re on track to roll out a website next week where you can order free tests shipped to your home,” he said, adding that people with medical insurance can also soon get reimbursed for the purchase of up to eight tests a month.

The announceme­nt about help for hospitals was the beginning of a deployment of 1,000 service members to help doctors and nurses deal with a surge in omicron cases, Biden said.

The deployment­s are part of the Biden administra­tion’s efforts to tackle the latest surge of omicron cases, which have reached more than 780,000 a day across the country. The number of Americans hospitaliz­ed with COVID-19 has hit a record high of about 142,000.

Research has emerged that omicron causes less severe disease and vaccines remain protective against the worst outcomes for the vast majority of people. Still, experts say that the sheer number of cases are likely to burden health care systems already strained by previous surges and grappling with staffing shortages.

Challenged by GOP-led states

When crafting the OSHA vaccinatio­n rule, White House officials always anticipate­d legal challenges — and privately some harbored doubts that it could withstand them. The administra­tion nonetheles­s still views the rule as a success at already driving millions of people to get vaccinated and encouragin­g private businesses to implement their own requiremen­ts that are unaffected by the legal challenge.

The OSHA regulation had initially been blocked by a federal appeals court in New Orleans, then allowed to take effect by a federal appellate panel in Cincinnati.

Both rules had been challenged by Republican-led states. In addition, business groups attacked the OSHA emergency regulation as too expensive and likely to cause workers to leave their jobs at a time when finding new employees already is difficult.

The National Retail Federation, the nation’s largest retail trade group, called the Supreme Court’s decision “a significan­t victory for employers.”

The vaccine mandate that the court will allow to be enforced nationwide scraped by on a 5-4 vote, with Chief Justice John Roberts and Justice Brett Kavanaugh joining the liberals to form a majority. The mandate covers virtually all health care workers in the country, applying to providers that receive federal Medicare or Medicaid funding. It affects 10.4 million workers at 76,000 health care facilities as well as home health care providers. The rule has medical and religious exemptions.

Biden said that decision by the court “will save lives.”

Conservati­ves’ dissent

In an unsigned opinion, the court wrote: “The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it. At the same time, such unpreceden­ted circumstan­ces provide no grounds for limiting the exercise of authoritie­s the agency has long been recognized to have.” It said the “latter principle governs” in the health care arena.

Justice Clarence Thomas wrote in dissent that the case was about whether the administra­tion has the authority “to force healthcare workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo.” He said the administra­tion hadn’t shown convincing­ly that Congress gave it that authority.

Justices Samuel Alito, Neil Gorsuch and Amy Coney Barrett signed onto Thomas’ opinion. Alito wrote a separate dissent that the other three conservati­ves also joined.

Decisions by federal appeals courts in New Orleans and St. Louis had blocked the mandate in about half the states. The administra­tion already was taking steps to enforce it elsewhere.

More than 208 million Americans, 62.7 percent of the population, are fully vaccinated, and more than a third of those have received booster shots, according to the federal Centers for Disease Control and Prevention. All nine justices have gotten booster shots.

The courthouse remains closed to the public, and lawyers and reporters are asked for negative test results before being allowed inside the courtroom for arguments, though vaccinatio­ns are not required.

The justices heard arguments on the challenges last week. Their questions then hinted at the split verdict that they issued Thursday.

A separate vaccine mandate for federal contractor­s, on hold after lower courts blocked it, has not been considered by the Supreme Court.

 ?? Jim Wilson / New York Times file ?? A protest against vaccine mandates is held in San Francisco on Jan. 4. Large businesses cannot be forced by OSHA to require COVID-19 vaccine shots for workers, the U.S. Supreme Court ruled.
Jim Wilson / New York Times file A protest against vaccine mandates is held in San Francisco on Jan. 4. Large businesses cannot be forced by OSHA to require COVID-19 vaccine shots for workers, the U.S. Supreme Court ruled.
 ?? Doug Mills / New York Times ?? President Joe Biden says he’ll reveal next week a plan to provide free, high-quality face masks to Americans.
Doug Mills / New York Times President Joe Biden says he’ll reveal next week a plan to provide free, high-quality face masks to Americans.

Newspapers in English

Newspapers from United States