SCOTUS Blocks OSHA Shot Mandate and Allows It for Health Care Workers

Jan 13, 2022

The U.S. Supreme Court in a 6-3 opinion blocked the Biden administration’s vaccine-or-test requirement for businesses with over 100 employees, but in a 5-4 opinion, the High Court allowed the shot mandate authorized for Medicare and Medicaid health care facilities and workers. 

In National Federation of Independent Business v. Department of Labor, the Supreme Court ruled 6-3 that the Occupational Safety and Health Administration (OSHA) lacks broad authority to impose an immunization requirement on employers. The Court said that COVID-19 “is not an occupational hazard” in most workplaces (emphasis in original). The Court issued a stay of the OSHA mandate that will remain in effect through the ongoing litigation and continue if a petition for cert is granted in the future until the final disposition of the case. 

Justices Breyer, Sotomayor and Kagan dissented in the decision to stop OSHA from requiring any workers in large businesses who remain unvaccinated to “undergo [weekly] COVID-19 testing and wear a face covering at work.” If allowed to take effect, it would have forced every large business to require proof of a negative COVID-19 test on at least a weekly basis or proof of vaccination from each worker or face large fines. 

The Court wrote in an unsigned opinion, “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…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.”

In a 5-4 decision in Biden v. Missouri, the Court lifted the stay the lower court injunctions issued against the Medicare and Medicaid mandate issued by the Secretary of Health and Human Services at federally funded health care facilities. In other words, the Court allowed the Medicare and Medicaid mandates to go into effect pending the ongoing litigation and any future petition for cert that may be filed. Justices Thomas, Alito, Gorsuch and Barrett dissented in the opinion. 

The mandate for health care workers was issued in November by the Centers for Medicare and Medicaid Services (CMS) within the Department of Health and Human Services (HHS) and requires facilities that receive Medicare or Medicaid funding to require workers to get the COVID injection with no testing opt-out. 

Justice Alito wrote in his dissent, “Today’s decision will ripple through administrative agencies’ future decision making. The Executive Branch already touches nearly every aspect of Americans’ lives. In concluding that CMS had good cause to avoid notice-and-comment rulemaking, the Court shifts the presumption against compliance with procedural strictures from the unelected agency to the people they regulate. Neither CMS nor the Court articulates a limiting principle for why, after an unexplained and unjustified delay, an agency can regulate first and listen later, and then put more than 10 million healthcare workers to the choice of their jobs or an irreversible medical treatment.” 

The litigation on both mandates will continue in the lower courts. Moreover, health care workers are still entitled to religious accommodations in the workplace. 

Liberty Counsel Founder and Chairman Mat Staver said, “While I am pleased that the OSHA mandate has been blocked, the Medicare and Medicaid mandate for health care workers will cause great harm. This mandate will cause a shortage of qualified health care workers at a time when we most need them. This mandate is abusive. This is no way to treat our health care heroes. Health care workers should continue to press for medical and religious exemptions. We will continue to fight for health care workers against these mandates.” 

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