Quick read:

• The Supreme Court blocked the Occupational Safety and Health Administration from enforcing a vaccine mandate for private employers with 100 employees that would require employees to be vaccinated against COVID-19 or undergo mandatory testing.
• The court said such an order would need congressional action.
• The court said OSHA should stick to regulating workplace safety, not public health.
• The court said it could imagine rules requiring vaccinations for targeted occupations with higher risks.
• A minority opinion said justices “lack the background, competence, and expertise to assess” workplace and safety matters and should defer to OSHA’s expertise.
• The court upheld a vaccination requirement for health care workers at facilities receiving federal money.

There are few Supreme Court decisions that affect two-thirds of the nation’s workforce so directly.

The U.S. Supreme Court blocked President Joe Biden’s attempt to force employers with 100 or more employees to require workers to either get vaccinated or undergo routine testing. The rule would have affected 84 million workers.

The ruling reflects the unease that some justices expressed a week ago that Congress should expressly pass legislation to give the Occupational Health and Safety Administration the authority to require such measures as a part of workplace safety rules.

The court opinion rejecting the OSHA rules pointed out, “As its name suggests, OSHA is tasked with ensuring occupational safety — that is, ‘safe and healthful working conditions.’”

The unsigned order included these important passages:

Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly.

Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.

The Act (Occupational Safety and Health Act of 1970) empowers the Secretary to set workplace safety standards, not broad public health measures.

The Act’s provisions typically speak to hazards that employees face at work. And no provision of the Act addresses public health more generally, which falls outside of OSHA’s sphere of expertise.

Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. 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.

A vaccine mandate is strikingly unlike the workplace regulations that OSHA has typically imposed. A vaccination, after all, “cannot be undone at the end of the workday.” Contrary to the dissent’s contention, imposing a vaccine mandate on 84 million Americans in response to a worldwide pandemic is simply not “part of what the agency was built for.”

The court order says that the OSHA regulation “operates as a blunt instrument. It draws no distinctions based on industry or risk of exposure to COVID–19. Thus, most lifeguards and linemen face the same regulations as do medics and meatpackers.”

The court then opened the door for a much less blanket-style OSHA regulation that might only affect occupations where COVID-19 presents a specific threat:

That is not to say OSHA lacks authority to regulate occupation-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.

We do not doubt, for example, that OSHA could regulate researchers who work with the COVID-19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID-19 that all face. OSHA’s indiscriminate approach fails to account for this crucial distinction—between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard.”

Businesses and mostly Republican leaders in 27 states brought the lawsuit, which weaved through lower courts with mixed results.

Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, as expected, disagreed with the majority decision. They contend that the OSHA Act clearly requires the government to provide safe workplaces and that the majority of the court consistently refers to the OSHA order as a vaccine mandate when it also allows people to choose to be tested. The minority opinion says:

Underlying everything else in this dispute is a single, simple question: Who decides how much protection, and of what kind, American workers need from COVID-19? An agency with expertise in workplace health and safety, acting as Congress and the President authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes?

The minority opinion gets more pointed:

And then, there is this Court. Its members are elected by, and accountable to, no one. And we “lack the background, competence, and expertise to assess” workplace health and safety issues. When we are wise, we know enough to defer on matters like this one.

When we are wise, we know not to displace the judgments of experts, acting within the sphere Congress marked out and under Presidential control, to deal with emergency conditions. Today, we are not wise. In the face of a still-raging pandemic, this Court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed. As disease and death continue to mount, this Court tells the agency that it cannot respond in the most effective way possible. Without legal basis, the Court usurps a decision that rightfully belongs to others. It undercuts the capacity of the responsible dissenting federal officials, acting well within the scope of their authority, to protect American workers from grave danger.

Mandate stands for health care workers at facilities receiving federal money

A nursing home resident, second from left, at Harlem Center for Nursing and Rehabilitation, is given a COVID-19 vaccine prepared and administered by CVS pharmacists, Jan. 15, 2021, in New York. (AP Photo/Yuki Iwamura, File)

The court did agree that the federal government can mandate vaccinations for 17 million health care workers who work at facilities that receive Medicare or Medicaid funding from the federal government. Even that was a split decision, with Chief Justice John Roberts and Justice Brett Kavanaugh joining with Breyer, Sotomayor and Kagan.

That decision was justified by the spending clause of the Constitution, which allows the federal government to impose conditions when federal tax dollars are involved.

It is worth noting, however, that the court has recognized the authority of state governments in protecting public health. As far back as 1905, the Supreme Court ruled in a case brought by a Massachusetts pastor that state governments could require vaccination against smallpox.

The Biden administration contended that OSHA clearly had the authority to require vaccinations or testing because the rule, enacted under Congress’ power to regulate interstate commerce, allows OSHA to issue emergency rules when it deems them “necessary” to protect workers from a “grave danger.” The Commerce Clause of the U.S. Constitution is a critically important source of legislative powers, saying in effect that Congress can only act using powers enumerated in the Constitution.

The 10th Amendment is the part of the Constitution that says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

The Biden order leaned on the Commerce Clause, which refers to Article 1, Section 8, Clause 3 of the U.S. Constitution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Though it sounds as if it ought to only apply to things like trade across borders, the Commerce Clause has been used repeatedly over the decades to regulate health issues including, for example, the Affordable Care Act.

The future of mandates

While the ruling stops OSHA’s enforcement of the requirement that was to have started this week, many large corporations required employees to be vaccinated in anticipation of the federal order.

The court’s decision to nullify the OSHA requirements for vaccines or testing for private employers does not affect the Biden administration’s order for federal employees, including members of the military or federal contractors. And the order does not speak to state or federal government enforcement of mandate orders (or the prohibition thereof) nor forbid employers from imposing their own requirements.

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