On January 13, the U.S. Supreme Court made a fateful decision for millions of Americans by blocking the Biden administration’s mandate to vaccinate against COVID-19 for employees of large enterprises. At the same time, the court upheld a ruling issued by the Centers for Medicare and Medicaid Services (CMS) that requires employees of hospitals, nursing homes and other federally funded healthcare providers to be vaccinated.
Recall that on September 9, President Joe Biden presented a plan to combat the COVID-19 pandemic. The plan consisted of six points, and the main wave of criticism was caused by the first point – the introduction of mandatory vaccination. This requirement applied to more than 2.1 million federal and government contract employees and 17 million healthcare workers receiving federal Medicare/Medicaid funds. Large private corporations employing 100 or more people also had to vaccinate all their employees. According to the Occupational Safety and Health Administration (OSHA), these companies employ more than 80 million Americans—nearly two-thirds of the private sector workforce. As an alternative to those employees who are unwilling or unable to get vaccinated, the federal authorities have proposed mandatory and regular testing.
The vaccination mandate predictably triggered an avalanche of lawsuits and exacerbated the personnel crisis: many chose to quit their jobs rather than comply with such a requirement. On November 12, the U.S. Court of Appeals suspended a mandatory COVID-19 vaccination order for private companies with 100 employees or more. The court ordered OSHA “to take no steps to implement or enforce the ruling until further adjudication.” In making its decision, the court proceeded from the fact that the federal government cannot require people to be vaccinated: in the United States, such requirements are set by state authorities, and not by the White House administration. In addition, it is not OSHA’s authority under the Occupational Safety and Health Act to issue such an order: OSHA has the authority to set safety and health standards for specific workplaces. In this case, the rules would apply too broadly.
The decision was “hanging” in the air, and everyone – both employers and employees – was waiting for what conclusion the Supreme Court would come to. On January 7, the judges listened to the arguments of both sides, but opinions were again divided. Thus, Judges Sonia Sotomayor, Elena Kagan and Stephen Brier concluded that the introduction of such a requirement is within the competence of the Centers for Medicare and Medicaid Services (CMS), equating it with infection control measures already required by the agency. In addition, Sotomayor added, the federal government had the power to decide whether it wanted to pay for certain services. (Hospitals, most nursing homes and home care agencies accept Medicare and Medicaid. They had to vaccinate their employees in order to receive money from these programs. – Ed.“The law allows the federal government to say, ‘If you want my money, your agency should do it,'” the judge said. But, Judge Neil Gorsuch said, the government does not have the right to “command” private business through its spending.
After the first meeting, experts in their forecasts agreed on one thing: the Supreme Court will “narrow down” the effect of the presidential mandate on vaccination. Sean Marrotta, attorney of appeals and the Supreme Court and visiting counsel for the American Hospital Association, wrote on his Twitter account that the judges will block this requirement for employees of various commercial companies because it is “too comprehensive.” Jonathan Turley, a professor at George Washington University School of Law, suggested that the judges might side with the Biden administration on the demands that affect paramedics. Fisher Phillips, LLP, one of the largest labor law firms in the US, polled 33 lawyers to find out what the Supreme Court could potentially rule. The vast majority (79%) of those surveyed thought that only the mandatory vaccination requirement for healthcare workers would remain in place.
So the Supreme Court’s decision was expected. As expected, the opinions of the judges were also divided – for ideological reasons. The vote for the abolition of the mandate was 6 to 3.
– The Occupational Safety and Health Administration (OSHA) has never issued such a requirement before. And while Congress unquestionably gave OSHA the power to set health standards and regulate workplace injury prevention actions, it did not give the agency the authority to regulate public health more broadly, the majority said. – The requirement to vaccinate 84 million Americans, chosen simply because they work in large enterprises, certainly belongs to the second category.
Judges Stephen Brier, Sonia Sotomayor and Elena Kagan disagreed with this decision.
– In our opinion, the court’s ruling seriously abuses the applicable legal standards. And thereby baffling the federal government’s ability to address the unprecedented threat COVID-19 poses to our nation’s workers, they wrote in a separate opinion. – Acting outside its jurisdiction and without legal grounds, the court overturns the decisions of government officials who have the responsibility to respond to health emergencies in the workplace.
The Court also voted 5 yes and 4 no on the CMS issue, upholding mandatory vaccinations for Medicare and Medicaid providers. In this case, Judges Brier, Sotomayor and Kagan, who voted in favor, were joined by Justice Brett Kavanaugh and Chief Justice John Roberts.
It must be clearly understood that the Supreme Court did not decide how good, effective and safe the available vaccines are. The point is that the federal government cannot impose vaccination – in the US, such requirements are set by the state authorities, and not by the White House administration. And the Supreme Court has put an end to a very important issue that could affect all future legal decisions about government actions: whether the federal government has the right to exceed its powers even in a pandemic.
At the same time, state governments and private business owners still have the right to set their own requirements. The federal government took the plunge and urged state governments and business owners to pass a mandatory vaccination law. However, the governors of some states have already come out strongly against it. Thus, Iowa Gov. Kim Reynolds announced that her state authorities would not enforce this requirement: “The Biden administration continues to ignore the constitutional rights granted to all Americans, on which our country is built. Instead, they would prefer to dictate health care decisions and exclude personal choice, exacerbating the personnel crisis.” Arkansas Gov. Asa Hutchinson called the vaccination mandate “arbitrary” and said large businesses should not comply with the government’s mandate, insisting that the decision to vaccinate should be made by each company leader. Authorities in Tennessee, Texas, Montana, North Dakota and Florida have also banned employers from discriminating against, firing or not hiring employees based on their vaccination status, and from checking vaccination certificates. However, local authorities may adopt their own requirements. So, despite the fact that New York State Governor Kathy Hokul has not yet made a decision on the mandatory vaccination of all employees of private enterprises, the New York City Mayor’s Office has already issued such a decree at the end of December last year.
President Biden, commenting on the Supreme Court’s decision, said he was “disappointed that the court decided to block vital demands [по вакцинации] employees of large enterprises, which were both scientifically and legally justified.
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