{"id":24531,"date":"2022-01-16T10:10:31","date_gmt":"2022-01-16T10:10:31","guid":{"rendered":"https:\/\/evaggelatos.com\/?p=24531"},"modified":"2022-01-16T10:11:20","modified_gmt":"2022-01-16T10:11:20","slug":"24531","status":"publish","type":"post","link":"https:\/\/evaggelatos.com\/?p=24531","title":{"rendered":"Supreme Court Blocks OSHA Vaccine Mandate \u2013 Upholds CMS Healthcare Workers Vaccine Mandate"},"content":{"rendered":"

Supreme Court Blocks OSHA Vaccine Mandate \u2013 Upholds CMS Healthcare Workers Vaccine Mandate<\/h2>\n
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Comments by Brian Shilhavy<\/strong>
\nEditor, Health Impact News<\/strong><\/p>\n

The U.S. Supreme Court handed down rulings today on the two COVID-19 vaccine mandates that were recently litigated in the nation\u2019s highest court.<\/p>\n

They struck down the OSHA mandate requiring private businesses with more than 100 employees to force their employees to receive COVID-19 shots, but upheld the CMS COVID-19 vaccine mandate for healthcare workers.<\/p>\n

While this is a victory for conservatives regarding the OSHA mandate, this court remains solidly pro-vaccine as the legal issue of injecting hundreds of millions of Americans with a deadly experimental \u201cvaccine\u201d that is drastically reducing the nation\u2019s population was never even considered.<\/p>\n

Now more than ever, Americans need to support businesses that do not require COVID-19 vaccine mandates, while boycotting those that do.<\/p>\n

Supreme Court blocks federal mandate for private workers to vaccinate or test<\/h1>\n
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The justices dropped two rulings late Thursday: one that freezes the mandate for large businesses and another that green-lights enforcement against health care workers.<\/strong><\/em><\/p>\n

by KELSEY REICHMANN
\nCourthouse News Service<\/a><\/p>\n

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The Supreme Court gutted the Biden administration\u2019s pandemic-response strategy Thursday in a split decision that puts a vaccine-or-test mandate for large businesses on ice.<\/p>\n

While no judge\u00a0signed the decision<\/a>\u00a0granting a stay of the mandate from the Occupational Safety and Health Administration, Justices Clarence Thomas and Samuel Alito joined a concurring opinion from Justice Neil Gorsuch. Justice Stephen Breyer, Elena Kagan and Sonia Sotomayor took the rare step meanwhile of co-signing a dissent that labels Covid-19 \u201ca menace in work settings.\u201d<\/p>\n

They contend that OSHA did what Congress asked it to do.\u00a0\u201cIn our view, the Court\u2019s order seriously misapplies the applicable legal standards,\u201d the dissent states. \u201cAnd in so doing, it stymies the Federal Government\u2019s ability to counter the unparalleled threat that COVID\u201319 poses to our Nation\u2019s workers. Acting outside of its competence and without legal basis, the Court displaces the judgments of the Government officials given the responsibility to respond to workplace health emergencies.\u201d<\/p>\n

The liberal justices said OSHA\u2019s mandate works to prevent workplace harm, and that the mandate is necessary to tackle the dangers during a pandemic where Covid-19 poses a grave danger to the public writ large.<\/p>\n

Skewering the majority\u2019s focus on whether OSHA has power to address a disease outside the workplace, Breyer, Kagan and Sotomayor emphasized that there is no dispute that Covid-19 poses a grave danger and that a vaccination policy is necessary to safeguard against it. They argue that nothing in OSHA\u2019s charge from Congress supports the majority decision.<\/p>\n

\u201cThat is what the majority today does \u2014 impose a limit found no place in the governing statute,\u201d the liberal justices wrote.<\/p>\n

As the majority saw it, however, OSHA lacks the authority to impose the vaccine-or-test mandate. The ruling holds up the mandate as a \u201csignificant encroachment into the lives \u2014 and health \u2014 of a vast number of employees.\u201d<\/p>\n

\u201cAlthough 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,\u201d the ruling states. \u201cRequiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.\u201d<\/p>\n

Expressing his disappointment with the ruling for large businesses Thursday, President Joe Biden called on business leaders to enforce their own vaccine mandates.<\/p>\n

\u201cThe Court has ruled that my administration cannot use the authority granted to it by Congress to require this measure, but that does not stop me from using my voice as President to advocate for employers to do the right thing to protect Americans\u2019 health and economy,\u201d Biden wrote. \u201cI call on business leaders to immediately join those who have already stepped up \u2014 including one third of Fortune 100 companies \u2014 and institute vaccination requirements to protect their workers, customers, and communities.\u201d<\/p>\n

For some experts, however, the prospect of different policies across the nation is an alarming one.<\/p>\n

\u201cAs with so many employment-related Covid-19 laws, this would create a patchwork of differing and potentially conflicting rules across the states that will be difficult and burdensome for multistate employers to track and comply with,\u201d\u00a0Michelle Strowhiro, a partner at McDermott Will & Emery, said via email ahead of Thursday\u2019s decision.<\/p>\n<\/div>\n<\/div>\n

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U.S. Solicitor General Elizabeth Prelogar framed the risk of contracting Covid-19 as a grave danger in arguments last week, but the high court and its conservative supermajority found this an insufficient basis to mandate workplace vaccines.<\/p>\n

\u201cPermitting OSHA to regulate the hazards of daily life \u2014 simply because most Americans have jobs and face those same risks while on the clock \u2014 would significantly expand OSHA\u2019s regulatory authority without clear congressional authorization,\u201d the ruling states.<\/p>\n

The majority later contrasted vaccinations to fire or sanitation regulations, which can always be undone at the end of the workday.<\/p>\n

\u201cImposing a vaccine mandate on 84 million Americans in response to a worldwide pandemic is simply not \u2018part of what the agency was built for,\u2019\u201d the ruling states.<\/p>\n

OSHA\u2019s vaccine-or-test mandate began enforcement on Monday. Large companies were required to start tracking the vaccine statuses of their employees and require those who aren\u2019t yet inoculated to wear masks. The testing component of the mandate was not scheduled to begin enforcement until Feb. 9.<\/p>\n

Along with a separate vaccination mandate for health care, President Joe Biden\u00a0championed the policies<\/a>\u00a0as the key to bringing the country out of a pandemic that has killed over 800,000 Americans.<\/p>\n

\u201cI am disappointed that the Supreme Court has chosen to block common-sense life-saving requirements for employees at large businesses that were grounded squarely in both science and the law,\u201d Biden wrote Thursday. \u201cThis emergency standard allowed employers to require vaccinations or to permit workers to refuse to be vaccinated, so long as they were tested once a week and wore a mask at work: a very modest burden.\u201d<\/p>\n

Business groups and Republican-led states quickly launched challenges to OSHA\u2019s mandate after it was announced in November. The rule drew so many challenges from across the country that a lottery system was triggered, sending the cases to the\u00a0Sixth Circuit<\/a>, where a three-judge panel ultimately saw no reason to delay the rule.<\/p>\n

Thursday\u2019s decision comes less than a week after\u00a0rare arguments<\/a>\u00a0on the fast-moving appeals.<\/p>\n

At the more than three-hour session, Justice Gorsuch and fellow Trump appointee Brett Kavanaugh echoed Chief Justice John Roberts regarding a rarely used exception to an agency\u2019s authority to interpret its own statutes. The major questions doctrine limits an agency\u2019s authority when they make rules that go beyond their charge from Congress. The justices implied that Congress did not explicitly say OSHA could mandate vaccines to protect employees so the agency would have to go back to lawmakers to ask them for permission.<\/p>\n

Arguments on OSHA\u2019s mandate were consolidated at the Friday hearing with separate challenges to another of the federal government\u2019s mandates, this one requiring Covid-19 vaccination for any health care worker whose employer receives federal funding.<\/p>\n<\/div>\n<\/div>\n

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The Supreme Court opted not to stay this mandate, writing in a separate decision that the rule does not exceed the authority of U.S. Health and Human Services. As in the OSHA case, the\u00a0health care ruling<\/a>\u00a0is not signed. Justice Thomas and Alito each wrote dissents, joined by Gorsuch and Justice Amy Coney Barrett.<\/p>\n

\u201cThe rule thus fits neatly within the language of the statute,\u201d the majority wrote. \u201cAfter all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm. It would be the \u2018very opposite of efficient and effective administration for a facility that is supposed to make people well to make them sick with COVID\u201319.\u2019\u201d<\/p>\n

Facilities regulated by the Centers for Medicare and Medicaid Services are obligated to comply with conditions related to the safe and effective provision of health care, the justices emphasized. Another section of the ruling unravels the argument by the rule\u2019s challengers that the HHS secretary could not regulate more than accounting at facilities.<\/p>\n

\u201cThe Secretary\u2019s role in administering Medicare and Medicaid goes far beyond that of a mere bookkeeper,\u201d the majority wrote.<\/p>\n

While the vaccine mandate indisputably goes further than previous rules by HHS, the court notes that this is because the agency has never had to deal with a problem like Covid-19 before.<\/p>\n

\u201cThe challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it,\u201d the ruling states. \u201cAt the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.\u201d<\/p>\n

Thomas wrote in the first dissent to the majority that the government did not prove its statutory authority to issue the rule.<\/p>\n

\u201cThe Government has not made a strong showing that this hodgepodge of provisions authorizes a nationwide vaccine mandate,\u201d Thomas wrote, joined by Alito, Gorsuch and Barrett.<\/p>\n

They said if Congress would have specified if it wanted health agencies to mandate vaccines.<\/p>\n

\u201cIf Congress had wanted to grant CMS authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly,\u201d Thomas wrote. \u201cIt did not.\u201d<\/p>\n

Gorsuch and Barrett also joined the separate dissent by Alito, as did Thomas, which calls the government\u2019s action unprecedented and its authority obscure. Alito attacks the government\u2019s use of an emergency order to take what he frames as belated action. He also accuses CMS of regulating first and listening later while attacking the power of the executive branch.<\/p>\n

\u201cToday\u2019s decision will ripple through administrative agencies\u2019 future decisionmaking,\u201d Alito wrote. \u201cThe Executive Branch already touches nearly every aspect of Americans\u2019 lives \u2026 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.\u201d<\/p>\n

Unlike OSHA\u2019s rule, the mandate from the Department of Health and Human Services does not include a testing and masking component. The mandate also includes religious and medical exemptions, but challenges to it still left it on hold in 25 states thanks to rulings in Texas as well as the Fifth and Eighth Circuits.<\/p>\n

With the rule now given Supreme Court force, all health care workers at federally funded facilities must have their first shot or submit their exemption request by Jan. 27 and have their second shot or exemption approval by Feb. 28.<\/p>\n

At arguments last week, Roberts and Kavanaugh both appeared more amenable to supporting the HHS mandate because of the close association to public heath and because no hospital affected by the mandate was actually fighting the mandate.<\/p>\n

States challenging the HHS mandate called the vaccine requirement unprecedented and said it would lead to worker shortages. The government shot back, however, that vaccines are routinely required for health care workers and that data shows most employees end up complying with mandates instead of losing their jobs.<\/p>\n

In the OSHA mandate case, businesses and states opposed to it claimed the government was exploiting its workplace-safety agency to target an enemy that is not necessarily a workplace danger. The opponents also noted that the Postal Service and other government agencies couldn\u2019t even comply with the mandates that would pose steep monetary costs and result in worker shortages.<\/p>\n

Breyer, Kagan and Sotomayor wrote Thursday that OSHA should have the authority to impose its mandate because it has the capabilities to evaluate the risks of Covid-19 and has responded appropriately to a public health crisis. The dissent blisters that such authority could be taken away by justices who are themselves accountable to no one and lack the expertise to make public health decisions.<\/p>\n

\u201cWhen 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,\u201d the liberal justices wrote. \u201cToday, 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.\u201d<\/p>\n

Read the full article at Courthouse News Service<\/a>.<\/p>\n

See Also<\/strong>:<\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n

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Published on January 13, 2022<\/div>\n<\/div>\n
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Tags: CMS mandate<\/a>, OHSA mandate<\/a>, Supreme Court<\/a><\/div>\n<\/div>\n
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Share This Story, Choose Your Platform!<\/h4>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Supreme Court Blocks OSHA Vaccine Mandate \u2013 Upholds CMS Healthcare Workers Vaccine Mandate Total Views : 2,011   43 0 Share 2 Share 0 0 Comments by Brian Shilhavy Editor, Health Impact News The U.S. Supreme Court handed down rulings today on the two COVID-19 vaccine mandates that were recently litigated in the nation\u2019s highest … <\/p>\n

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