In a major blow to President Joe Biden’s campaign to combat Covid, the U.S. Supreme Court today blocked implementation of his plan to require employers with more than 100 workers to have them vaccinated for Covid-19 or tested weekly for the virus.
In oral arguments before the Court last week, opponents of the mandates told the justices the requirements would cost businesses billions of dollars, impose administrative hardships on companies and organizations and force many people to quit their jobs.
U.S. Solicitor General Elizabeth Prelogar told the justices told the justices that Biden’s mandates would save 6,500 lives and prevent 250,000 hospitalizations in the next six months, and that exposure to Covid-19 is the biggest threat to workers in OHSA’s history.
Forbes reported that the proposed mandate will now go back to the lower courts to decide whether it will be permanently upheld or struck down.
Covid-19 has proven to be that rare crisis that has faced a series of political and legal challenges that have delayed or weakened efforts to address it.
‘A Massive Sigh Of Relief’
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Jackie Gessner is an associate at Barnes & Thornburg where she focuses on employment counseling and litigation, as well as OSHA compliance. She said today’s decision, “… comes as a massive sigh of relief for businesses already saddled with the difficult task of addressing COVID-19 risks in the workplace.”
“Businesses were struggling with how to handle large numbers of exemption requests and the seemingly impossible task of administering weekly tests, especially given the test supply shortage. This decision returns the decision making power to individual businesses, often more equipped to identify the best safety solutions for their workforce,” according to Gessner.
In an unsigned opinion, the court wrote that, “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,” the court wrote in an unsigned opinion.
“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 court said.
‘A Blistering Dissent’
“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,” they wrote.
“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.”
The Decision Was Simple And Practical
Michael Elkins, partner and founder of MLE Law, said today’s ruling was “… one of the most anticipated employment decisions in recent memory…” He observed that, “The lynchpin of the decision was simple and practical, OSHA has the ability to regulate ‘workplace’ hazards, not implement broad public health measures, which it says the OSHA rule is.
“The Court aptly points out that Covid is more of a universal risk than a unique workplace hazard. Basically, the Court found that OSHA went too far and exceeded its power. In striking down this rule, the Court did note that OSHA likely can regulate certain industries or jobs, such as researchers working with Covid-19, or the risks of working in particularly cramped or crowded environments,” he commented.
“At the end of the day, I view this as a practical decision, focusing on the idea that OSHA doesn’t have this exceedingly broad regulatory authority,” Elkins concluded.
Employers Are Now Free To Set Their Own Requirements
David Gordon, partner with Mitchell Silberberg & Knupp said that, “With today’s SCOTUS ruling, employers will now be free to set their own requirements, subject to applicable State and Local laws. If the Supreme Court had upheld the OSHA requirement, the local rules would have been preempted and large employers would have been obligated to disregard them.”
Significant Impact On Job Market
“This ruling has significant impact on the job market, as it’s no longer an even playing field among large employers in terms of recruitment. Now, if a large employer believes that it would be advantageous not to require employees to be vaccinated, it will be free not to adopt a vaccine mandate if permissible where they are located,” he said.
Where Decision Makes No Difference
“This ruling makes no difference for New York City employers and employers in other jurisdictions that will require that all employees be vaccinated. Employers in those locations will still be subject to applicable vaccine mandates,” Gordon noted.
If The Mandates Were Left In Place
Jeff Levin-Scherz, M.D., population health leader at Willis Towers Watson, said that, “Our recent survey suggest that many more employers would have pursued vaccine mandates if the rule was left in place.
“Many employers had already put mandates in place and we believe many will continue to do so where permitted. The omicron variant has proven so contagious that it will take very high vaccination rates to quell outbreaks.
“Vaccines help employers decrease the risk of infection at the workplace and the risk of workplace disruption, as those who are fully vaccinated are not just less likely to be infected, they also don’t need to quarantine if they are exposed at work or outside of work,” he observed.
“Employers continue to be in the forefront of efforts to make it easy for employees to get vaccinated, including offering flexible schedules, paid time off for vaccination and recovery. Some have offered on-site vaccination.
“Vaccinations are one important element of employer efforts to protect workers. Employers can also reduce risk of Covid transmission through increased ventilation, decreased worker density, and indoor masking,” Levin-Scherz concluded.