By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.
The United States Supreme Court weighed in yesterday on the Biden administration’s COVID-19 vaccine mandates in two separate, unsigned per curiam opinions, National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration and Biden v. Missouri,
The outcomes are unsurprising and were largely reflected in the drift of oral argument, conducted less than a week before these decisions were handed down.
Private Employer Vaccine Mandate Temporarily Blocked
In the first decision, the Court temporarily blocked implementation of a rule promulgated by the Occupational Safety and Health Administration (OSHA) requiring employees of businesses with more than 100 employees be vaccinated against COVID-19 or undergo weekly testing at their own expense and wear masks at work.
The OSHA rule took effect three days before yesterday’s Supreme Court decision. The rule pre-empts contrary state laws and applies to about 84 million employees.
The Court did not opine on the merits of OSHA’s rule, but merely blocked its enforcement, while a legal challenge remains pending before the United States Court of Appeals for the Sixth Circuit. Yet the Court will almost certainly grant grant certiorari to consider the OSHA rule’s merits. Yesterday’s ruling leaves little doubt what the majority of the Court thought of the merits of the challenge.
SCOTUS Blog succinctly summarized the Court’s decision:
Describing the mandate as a “significant encroachment into the lives — and health — of a vast number of employees,” the court emphasized that Congress must speak clearly if it intends to give a federal agency the authority to “exercise powers of vast economic and political significance.”
In this case, the court continued, Congress did not. It gave the Department of Labor the power to establish safety standards for the workplace, rather than “broad public health measures.” Although COVID-19 “is a risk that occurs in many workplaces,” the court acknowledged, it isn’t a risk that workers encounter simply by virtue of being at work – COVID-19 spreads virtually anywhere that people gather. “Permitting OSHA to regulate the hazards of daily life — simply because most Americans have jobs and face those same risks while on the clock — would significantly expand OSHA’s regulatory authority without clear congressional authorization,” the court concluded. And indeed, the court noted, the fact that OSHA has never adopted a similar regulation is a “telling indication” that the vaccine-or-test mandate exceeds the agency’s power.
The handwriting is clearly on the wall. Liberal and conservative justices disagree fundamentally on who should decide pandemic policy. On the one hand, the dissent by the Court’s most liberal jurists , Stephen Breyer, Sonia Sotomayor, and Elena Kagan, maintains the issue is the prerogative of the federal government, acting through OSHA. Yet on the other hand, a concurrence by three conservative justices, Clarence Thomas, Samuel Alito, and Neil Gorsuch, contends such policy is a matter for states and Congress to decide.
Per SCOTUS blog:
Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan penned a rare joint dissent in which they complained that employees, “more than any others,” have “little control, and therefore little capacity to mitigate risk” from the spread of COVID-19. The majority’s ruling, they contended, “stymies the Federal Government’s ability to counter the unparalleled threat that COVID-19 poses to our Nation’s workers.”
The dissenters tackled the same question that was at the heart of a concurring opinion filed by Justice Neil Gorsuch (and joined by Justices Clarence Thomas and Samuel Alito): Who should decide how to respond to the pandemic? For Gorsuch, the “answer is clear”: the states and Congress. The dissenters reached a very different conclusion: OSHA, with its expertise in workplace safety and its status as a politically accountable government agency, is better suited to make decisions about how to protect workers from COVID-19 than “a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes.”
In the second per curiam opinion, by a 5-4 vote, the Court temporarily upheld a nationwide COVID-19 vaccine mandate for health care workers at facilities that participate in the Medicare and Medicaid programs, unless a worker qualifies for a medical or religious exemption. Chief Justice John Roberts, Justice Brett Kavanaugh, and the Court’s three liberal justices comprised the majority.
The Department of Health and Human Services (HHS) promulgated the rule at issue in Biden v. Missouri in November, to apply to roughly 10 million health care workers nationwide. Two federal district courts, in Louisiana and Missouri, had previously blocked enforcement of the HHS rule in about half of the states. This decision now clears the way for HHS to enforce its vaccine mandate fnationwide or health care workers.
The Bottom Line
With the federal private sector vaccine mandate now ‘temporarily’ blocked, employers themselves must now decide whether or not to require vaccination. As The New York Times reports:
The employer decision undercut one of President Biden’s most significant attempts to tame the virus and left the country with a patchwork of state laws and policies, largely leaving companies and businesses on their own.
Companies have taken different positions on whether or not to require employees to be vaccinated. Per the NYT:
Several major companies, like United Airlines and Tyson Foods, already have mandates, while others had held back and waited for legal battles to be resolved. Some companies have been anxious about losing employees at a time when workers are already scarce. While firms with mandates have said those worries largely have not come to fruition, a national requirement could have helped ease those concerns.
Walmart, Amazon and JPMorgan Chase, three of the largest employers in the United States, have yet to issue broad requirements for their workers. Some companies that have waited have cited concerns about the costs of setting up testing programs and pushback from unvaccinated employees.
The separate health care worker mandate has been upheld and applies to nearly all U.S. health care workers. If HHS aggressively enforces this mandate, it risks exacerbating crisis employment conditions in the health care sector, as many unvaccinated health care workers may now opt to quit rather than comply.
States such as California have already decided to allow asymptomatic health care workers who have tested positive to remain at their posts – although it recommends they be deployed to care for COVID-19 patients.
Once appeals are exhausted, the Court is soon likely to grant certiorari to consider more fully both the OSHA and HHS vaccine mandates. At that point, it looks likely that the OSHA mandate will be fully overturned, while the Court will uphold the HHS mandate.
With the Biden administration stymied in its ability to implement a nationwide vaccine policy via OSHA, state-level vaccine mandates will then come to the fore. That is unless Congress were to decide to act – which is highly unlikely at present, especially given the deep divisions over COVID-19 policy and questions of the ongoing efficacy of vaccines, especially as new virus variants emerge.
Per the NYT:
The Supreme Court has repeatedly upheld state vaccine mandates in a variety of settings against constitutional challenges. The two cases decided on Thursday concerned a different question, that of whether Congress has authorized the executive branch to institute the requirements.
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Question for any lawyers: Does this make businesses with a mandatory vaccine policy liable for vaccine injury?
Not a lawyer, but every time I or family members asked this question of our employers, under government mandate or just employer mandate, the answer was that employees could put in a workers’ comp claim. Though I suspect a successful claim would require that you can get a doctor to tie in the injury to the vaccine instead of ‘coincidence’.
not a lawyer, but was in the room full of attorneys when it was asked.
if the vaccine was required, and it caused damages, you would be eligible for a workers comp claim. Tomfoolery was spot on.
I am a lawyer. My expectation that the manufacturer’s immunity from civil liability would be extended to employers under those circumstances. Not hard to see judges talking themselves into “immunity means immunity–full stop.” Without guidance from workers compensation administrators saying otherwise–I expect employer immunity is the likeliest of outcomes.
The manufacturers’ immunity should match the effectiveness and duration of the vaccine provided immunity.
Everything about the workers comp system is set up to force people off benefits and back to work as fast as possible. Incredibly biased in favor of employers. I suffered an occupational exposure chemical poisoning type of injury and this is what I’ve been told by expert doctors, lawyers and union reps in charge of helping members with disability insurance. Even if you have a clear-cut on-the-job work injury it’s best to keep your claim out of the workers comp system if you have other avenues to receive care and renumeration. If it’s a one-off freak accident you will have much less trouble, but if its a systematic type of injury your claim will be resisted by any means necessary. Workers comp administrators have the jobs they do because they are known entities predisposed to side with the employers who are also the funders and architects of the system. Vaccine injury isn’t like getting your arm crushed on an assembly line either. The pharmaceutical industry will have an army of lawyers, doctors, and experts claiming vaccines are safe and the employee alleging harm is either crazy, sick from some other mysterious malady or just a lazy scammer looking for a payday. The business lobby will unite to fight every single vaccine-related workers comp case as an existential threat. Precedents are dangerous and expensive things, especially in a scenario where millions of workers can claim they were forced to take vaccines they didn’t want by their employer.
My initial take on this, was that private insurers would be the ones to mandate vaccines, or open the door to allow business to use it as an excuse to keep health costs down. Vaccinated here’s you rate, not vaccinated, here’s your higher rate.
Private enterprise doesn’t want to foot the bill for those covid long haulers. Insurance companies don’t want to have to payout on those free money employer life insurance policies that have to payout when prime working age people die prematurely. The margins on those are even higher than margins on extended warranties.
We do it to smokers, you can do it to the unvaccinated. I’m sure Big business and big insurance will get that passed to protect their bottom line.
But if the vaccine doesn’t actually prevent Covid–or long haulers–your logic falls apart. And there are also health risks in taking the vaccine. These may be small but our physician contributor here has said he would consider his children more at risk from the vaccine than from Covid.
All of which is to say that the safety and wisdom of requiring the vaccine for all age groups is not a settled question–the premise of the dissenters. And therefore such a controversial requirement should be left to the people’s representatives if not–more wisely still–to the individual members of the public themselves. Such a requirement would be difficult to pass through Congress because it should be.
Vaccines prevent hospitalization and death, so it doesn’t fall apart.
Which if that happens would be the result of a choice the unvaxxed have made re a risk to themselves Even Fauci has now said that the vaxxed are just as capable of transmitting the virus as the unvaxxed and that is what is at issue in the OSHA mandate.
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I think it does fall apart with respect to long COVID.
And never mind any medium- long-term side effects of the vaccines (got at least one), there is – at least for me – the one to two days in bed with fever, chills and aches after every shot (at least the 3 I tried so far). This every 6 months forever?
Experimental mRNA injections only claim to mitigate symptoms and hospitalization stays — not prevent, per the manufacturers.
You assume, of course, that healthcare insurance want to keep healthcare costs down. It seems to me that when you limit insurance companies’ administrative costs to 10% of premiums, as I believe Obamacare does, then you have an incentive to want healthcare to cost more so that your 10% will be higher. I could be mistaken about this.
CORRECTION: “….that healthcare INSURERS want to keep….”
Insurers are not allowed to change policy terms on the fly. Anyone who did that would be hit with a big time lawsuit and would lose.
The only way that could happen would be if insurers started offering 2 tier employer policies. I think they would not want to be in the middle because they’d have to verify vaccination status. And insurance is state regulated, you can imagine all red states would make those terms illegal.
This will just create further balkanization of the country as people seek jobs with and without mandates.
All employees resisting vaccines should have their employer fill out these forms accepting responsibility for consequences:
https://home.solari.com/forms/
The current ‘vaccines’ are non sterilizing and don’t stop infection or transmission of the virus. So I can’t see what benefit this would be. Surely it’s better to wear N95 masks and ventilate the workplace to lower the quantity of virus in enclosed spaces.
90% after a booster, which goes down to 50% after 10 weeks. Where I’m from that’s actually doing something.
90% of what? Claimed by whom? The manufacturers? For an experimental mRNA GMO injection–one initially marketed as a solution to a novel virus–the rate of “breakthrough cases” should be food for thought any intellectually honest person.
Re: “Liberal and conservative justices disagree fundamentally on who should decide pandemic policy.”
Maybe the conservative justices are deciding fundamentally who should regulate workplace safety. This seems like a troubling possibility regardless of where one stands on the particular public health, workplace safety, and personal freedom issues with the mandate. Are there many workplace safety issues that aren’t also hazards in daily life?
Re: “a significant encroachment into the lives — and health — of a vast number…”
It certainly is, and caution seems like a good idea. However, these concerned conservatives have allowed the TX forced birth mandate to stand while the legal challenge remains pending, which has likewise left “little doubt what the majority of the Court thought of the merits of the challenge.”
Seems like employees no longer have to wash their hands after using the bathroom.
If I may, there is an excellent podcast titled, “5-4.” [I have no affiliation except as a listener.] The name refers to the number of SCOTUS cases decided by a 5 to 4 margin. The podcast describes itself thusly–
“5-4 is a podcast about how much the Supreme Court sucks. It’s a progressive and occasionally profane take on the ideological battles at the heart of the Court’s most important landmark cases, and an irreverent tour of all the ways in which the law is shaped by politics.
“Listen each week as hosts Peter, Michael, and Rhiannon dismantle the Justices’ legal reasoning on hot-button issues like affirmative action, gun rights, and campaign finance, and use dark humor to reveal the high court’s biases.”
Look for it wherever you get your podcasts, or at the website:
Thanks for the recommendation. I don’t know this podcast. There’s entirely too much mystique surrounding the Supreme Court, and anything that seeks to debunk that – by examining the politics lurking behind so-called legal decisions – is worth a look.
It has really opened my eyes to the way the court works—how the court sides with corporations the vast majority of the time and the ways the justices effectively start with the result they want to achieve and then work backward from there. Too, it has taught me much about the personalities of the justices and how they interact. For instance, I had no idea that Alito was such a curmudgeon.
All nine members of the court are politicians in black robes. Perhaps more than that on rare occasions but certainly nothing less.
Did I forget to include a link or did it get deleted for some reason? Oops.
It’s fivefourpod(dot)com.
Will have to give the podcast a try…
I hope they would also get into the way they tend to agree on rulings having to do with corporations and property rights (siding against the citizens). Much like the other 2 branches, they always seem to agree on those issues ,as they are also in that “club”…
How long before the government decides, with Supreme Court concurrence, that Medicare patients must be vaccinated to receive care?
I was wondering the same thing if we had national health care.
It’s the same issue as with OSHA: Medicare was not designed to act as an enforcer. Medicare beneficiaries are not require to get annual exams, stay current on other vaccines like tetanus, take their meds, lose weight if diabetic.
Congress would have to amend the Medicare statutes.
And yet three Supreme Court justices supported mandated vaccines for employees – and five supported vaccine mandates for medical employees, based on Medicare/Medicaid funds being received by the companies they work for. It seems that law, like so many things, is becoming less dependent on clear statutory language, and more on ideology.
I hope that the idea of vaccine mandates for Medicare recipients doesn’t rear its ugly head, but the angry mood of so many people, urging hospitals to kick out the unvaccinated, suggests that it could get a lot of support.
Fait accompli:
“That is not to say OSHA lacks authority to regulate occu-
pation-specific risks related to COVID–19. Where the virus
poses a special danger because of the particular features of
an employee’s job or workplace, targeted regulations are
plainly permissible.” Per Curiam.
The race is on, as Bobby sang well. General strike? https://www.youtube.com/watch?v=fBfzIFnAXdg&list=RDfBfzIFnAXdg&start_radio=1&rv=fBfzIFnAXdg&t=71
Some thought needs to be given to this, which actually reflects some of the commentary on this Blog:
PER CURIAM.
The Secretary of Labor, acting through the Occupational
Safety and Health Administration, recently enacted a vac-
cine mandate for much of the Nation’s work force. The
mandate, which employers must enforce, applies to roughly
84 million workers, covering virtually all employers with at
least 100 employees. It requires that covered workers re-
ceive a COVID–19 vaccine, and it pre-empts contrary state
laws. The only exception is for workers who obtain a medi-
cal test each week at their own expense and on their own
time, and also wear a mask each workday. OSHA has never
before imposed such a mandate
On their own expense, and on their own time. Hmm. Molasses brained is a compliment.
Regardless of where you stand on this issue some back analysis should give you pause.
This is a subgroup application of a forced vaccination of a non sterilizing agent in an unequal manner. A vaccine with a defined side effect profile which more occasionally has severe and deadly effect.
Vaccine mediated thrombocytopenic clotting. Deep venous thrombosis and pulmonary embolus. Stroke and MI risk profile increase, cerebral venous thrombosis, myocarditis, pericarditis, Bell’s palsy and other less well defined if subtle neurological derangements are associated with the vaccine administration. Contingent on one’s age and health, those risks might exceed the temporally limited benefit of vaccination, even shorter now with omicron.
This same group of people who faced and interfaced with the infected public without the benefit of the limited protection the vaccine for about a year. A group most probably well appraised of risks and benefits and most well able to make decisions about their own health. A group which suffered significant morbidity and mortality from the close exposure to the disease in service to the public.
They no longer have autonomy to decide, if they are to remain in their profession.
It is a questionable precedent.
It applies to Healthcare workers and not postal workers.
It applies to healthcare workers and not members of congress.
It applies to healthcare workers and not undocumented immigrants.
It applies to healthcare workers and not grocery store workers.
Unequal application of the law.
The othering of the unvaccinated began last summer coincident with the realization of waning vaccine efficacy. It went into second gear this fall after a speech. The villain had been identified and all of the free floating anxiety now had a focal point. It also conveniently was a group who were largely politically antithetical to the current administration. Let the pogroms begin.
And so vaccines and vaccination status have transcended medical and public health status. It has become a totemic icon of political affinity and convenient scapegoat for all of the preceding policy failures.
I think that is where most people are right now. Tired of the disruption in their lives and frustrated with those who are not helping every thing get back to normal.
Unfortunately the science renders the messaging moot. Omicron is piercing all of the current mitigation strategies. Prior vaccination is not protective and boosting seems only to have a few months of severe disease protection.
But, healthcare workers must. get. vaccinated. And with this precedent, will likely be the ones to receive the latest new experimental vaccines or treatments as they evolve around this or other emerging epidemiological exigencies.
Excellent points. Thank you.
Add to this the administration’s call for limiting speech and the press to viewpoints consistent with the government’s positions.
We might also make a distinction between the unvaxxed and the anti-vaxx. My impression is that there are socio-economic and ethnic differences in the vaxxed rate. Policies designed to punish or ostracize the anti-vaxx may have unintended consequence of discriminatory impact on the unvaxxed.
My son and I are waiting for Novavax. For over a year. I suspect, but do not know (because there is no coverage of the Medical Miracle that is Cuba) that Cuba has put out several traditional sub unit protein vaccinations that are effective, and can be stored in the type of refrigerators that can be found in any community center?
https://www.nature.com/articles/d41586-021-03470-x
From here you judge
Helps to read something sane, IseeyoudocK. Thanks!
In my lifetime I have never seen such an assiduous ignoring/denial/dimissal by Authorities of naturally acquired immunity. It never gets factored into any of our pandemic policies, despite 100’s of studies showing prior infected have durable. robust, broad immunity.
And likely > 150-200 million have now had the infection.
” We estimated antibody levels associated with protection against reinfection likely last 1.5-2 years on average, with levels associated with protection from severe infection present for several years. These estimates could inform planning for vaccination booster strategies.”
https://www.nature.com/articles/s41467-021-26479-2
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7091197/
My comment on Cuba. I’m not certain the Cuba went the traditional protein subunit route.But I doubt that Government went mRna, for obvious reasons. Something to add to, well, whatever category, because there are several, some to be named.