U.S. Supreme Court

Roberts, Kavanaugh votes key as SCOTUS upholds vaccine mandate for health workers but not for others

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The U.S. Supreme Court on Thursday gave the Biden administration one loss and one win in its bid to impose vaccine requirements on health care workers and employees at larger companies.

The high court allowed a vaccine mandate for health care workers in health care settings that receive federal funds. But the court blocked a vaccine-or-test mandate for those who work at companies with more than 100 workers.

The votes of two justices were key, the New York Times and the Washington Post report.

The vote in the health care vaccine case, Biden v. Missouri, was 5-4. Two conservative justices—Chief Justice John G. Roberts Jr. and Brett M. Kavanaugh—joined with the court’s three liberal justices to form the majority.

The vote in the employer case, National Federation of Independent Business v. Department of Labor, was 6-3, with the court’s six conservatives forming the majority.

The court had heard arguments in the cases during a special hearing Friday. The court heard the cases in response to emergency applications.

In the employer vaccine case, the Supreme Court said the secretary of labor did not have authority to impose the mandate developed by the Occupational Safety and Health Administration.

OSHA had required the vaccine at workplaces with at least 100 employees. Employers had the option of allowing workers to remain unvaccinated, however, if they wore masks and obtained a test each week.

OSHA had adopted the workplace mandate as an emergency temporary standard, an emergency rule that doesn’t initially have to go through the notice and comment practice.

But the Supreme Court said the Occupational Safety and Health Act did not authorize the secretary of labor to impose the mandate.

“The act empowers the secretary to set workplace safety standards, not broad public health measures,” the Supreme Court said in its per curiam opinion.

The court acknowledged, however, that OSHA may regulate “occupation-specific risks related to COVID–19.”

“We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus,” the Supreme Court said. “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.”

Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan wrote a joint dissent. They argued that the majority misapplied legal standards and hampered the government’s ability to counter “the unparalleled threat” of COVID-19.

“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?” the dissenters wrote. “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?”

In the health care case, the Supreme Court said the secretary of the Department of Health and Human Services (currently Xavier Becerra, since March 2021) has long required infection control at hospitals and other facilities that receive Medicare and Medicaid funds. The vaccine rule falls within the secretary’s statutory authority, the court said in its per curiam opinion.

“Of course, the vaccine mandate goes further than what the secretary has done in the past to implement infection control,” the court said. “But he has never had to address an infection problem of this scale and scope before. In any event, there can be no doubt that addressing infection problems in Medicare and Medicaid facilities is what he does.”

Justice Clarence Thomas dissented in the health care case, joined by Justices Samuel A. Alito Jr., Neil M. Gorsuch and Amy Coney Barrett.

Thomas said the government wrongly relied on “a hodgepodge of scattered provisions” to justify the mandate. Had Congress wanted to grant the Centers for Medicare & Medicaid Services the power to impose a vaccine mandate across all facility types, “it would have done what it has done elsewhere—specifically authorize one,” he wrote.

See also:

ABAJournal.com: “Supreme Court doesn’t interfere with New York COVID-19 vaccine mandate, despite lack of religious exemption”

ABAJournal.com: “Supreme Court sets special hearing on vaccine mandates for larger workplaces, health workers”

ABAJournal.com: “6th Circuit picked to consider 34 challenges to vaccine mandate; these plaintiffs filed initial suits there”

ABAJournal.com: “6th Circuit reinstates workplace vaccine mandate, says OSHA authority isn’t limited to hard hats, goggles”

ABAJournal.com: “Will employer vaccine mandate survive? OSHA would act under little-used statutory provision”

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