Supreme Court halts COVID-19 vaccine rule for US businesses
Speaker 1: (00:00)
Most large businesses in corporations across America are on their own. Again, regarding the question of employee COVID vaccinations on Thursday, the us Supreme court blocked a vaccine mandate issued by the Biden administration, the vaccine or testing mandate. Would've applied to companies with 100 employees or more yesterday. Supreme court decision has similarities with December San Diego superior court ruling, which stopped San Diego unified school district from enforcing a student vaccine mandate. So why are courts blocking measures that could slow down the spread of a disease that is already killed almost 850,000 Americans joining me to explain the law behind these rulings is legal analyst. Dan Eaton, a partner at the San Diego law firm of Selzer Kaplan, McMann and Vitech. And Dan, welcome back to the show. Sure. Good
Speaker 2: (00:52)
To be with you again, Maureen,
Speaker 1: (00:54)
The Supreme court's decision against Biden's vaccine mandate was 6 2, 3 split down along conservative and liberal lines. One is the conservative argument against the vaccine mandate for businesses.
Speaker 2: (01:06)
Well, what the majority said was that the occupational safety and health administration went beyond the, uh, statutory bounds of regulating occupational hazards by trying to regulate a pandemic that is broadly afflicting, uh, society. And it said, no, you're outside of your lanes. And therefore you went too far, uh, in trying to issue a mandate. That's going to affect everyone. Indiscriminately afflicting people no differently from say pollution and crime appoint. The conservative majority specifically may in its unsigned opinion,
Speaker 1: (01:44)
But in their dissent, the liberal justices argue that OSHA does have the authority. How do they come to that conclusion?
Speaker 2: (01:52)
It was a very strongly written dissent. Uh, more in fact, at one point in the dissent, uh, the dissenters, it was actually a jointly signed opinion, uh, called it perverse. The, that was the word that was used, uh, given the circumstances of the pandemic. And I'm quoting here to read the acts grant of emergency powers in the way the majority does as constraining OSHA from addressing one of the gravest workplace hazards in the agency's history close quote. What they essentially said was that look, an agency charged with a regulating the workplace. It has expertise is far better than a court, which has no such expertise and no political accountability to
Speaker 1: (02:30)
Do so, but somehow the OSHA vaccine mandate for healthcare workers employed at facilities that receive federal money was approved by the court. What made that different?
Speaker 2: (02:41)
The answer is actually in the way you phrased that ex in question Maureen, which is, it was a very different statute and that particular statute, which dealt with the grant of federal money for, uh, those, uh, under the, uh, Medicaid and Medicare programs, the issue, uh, was whether the, uh, secretary of health and human services could condition the grant of money to these healthcare facilities, having their staffs vaccinated. And that is a power that agencies routinely exercise conditioning, the grant of taxpayer money on compliance with certain regulations that said the majority of five to four majority was allowable within this a grant. In other words, when you are talking about different kinds of laws, you are going to have from time to time, different outcomes, even when you were talking about essentially the same kind of regulation in this case, a vaccine mandate. Now
Speaker 1: (03:33)
The San Diego judge who ruled against San Diego unified also said the district lacked the authority to issue a student vaccine mandate. Why is that?
Speaker 2: (03:43)
But that gets to the point that I just made it reinforces the idea that you are talking about an issue of whether COVID 19 is on one of the list, which allows, uh, a list of, uh, diseases that you can sort of bypass the, or ordinary our regulations to issue these kinds of mandates and condition attendance at school for being vaccinated. And it's not, the legislature has not yet acted. And, uh, therefore because of the, uh, Sandy superior court said, if any action is gonna come with respect to vaccine mandates, it's gonna have to come from the legislature. You can't do it as an individual school district. It's an issue of staying within the lanes of the statutory grant of authority in all of these cases.
Speaker 1: (04:28)
So is it a legal problem then that governing bodies like Congress and state governments are not issuing these mandates themselves?
Speaker 2: (04:36)
Well, it sounds like it's more a political consideration than anything else. The interesting thing is when you talk about the essential question, which is who gets to decide these issues, justice Gorsuch went out of its way almost as rejoinder, uh, to the liberals about who gets to decide to say, there is no question that state and local, uh, authorities get to regulate public health. Generally. It's just that a lot of them have not in California. For example, we have our own mandate with respect to, uh, vaccination of healthcare workers that preceded the one that, uh, the Supreme court just upheld in yesterday's ruling. So, uh, the bottom line is it's more an issue of the political bodies making different political considerations. There is a real question about whether the, uh, state political actors, state, and local political actors have this authority. It is clear as your question suggests that that power, if it exists, hasn't been exercised. Is there
Speaker 1: (05:32)
Anything in these recent rulings that block private companies from mandating that their employees get vaccinated or frequently tested for? COVID
Speaker 2: (05:41)
No, and it is very important that people understand that, that, uh, it, it absolutely does not affect the power of private employers of any size to require vaccination. Of course, there are some states that prohibit private employers from, uh, imposing a vaccine mandates like Texas, California is not one of them. Private employers retain the ability to require their employees, uh, to be vaccinated as a condition of employment in the, at will private setting. There are all kinds of complicated when you get outside of that setting, which applies to the vast majority of the workplace.
Speaker 1: (06:20)
I've been speaking with Dan Eaton, legal analyst and partner at the San Diego law firm. Selzer Kaplan, McMann, and Vitech Dan, thank you very
Speaker 2: (06:28)
Much. Great to be with you.
The Supreme Court has stopped the Biden administration from enforcing a requirement that employees at large businesses be vaccinated against COVID-19 or undergo weekly testing and wear a mask on the job.
At the same time, the court is allowing the administration to proceed with a vaccine mandate for most health care workers in the U.S.
The court’s orders Thursday during a spike in coronavirus cases was a mixed bag for the administration’s efforts to boost the vaccination rate among Americans.
The court's conservative majority concluded the administration overstepped its authority by seeking to impose the Occupational Safety and Health Administration's vaccine-or-test rule on U.S. businesses with at least 100 employees. More than 80 million people would have been affected.
“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,” the conservatives wrote in an unsigned opinion.
In dissent, the court's three liberals argued that it was the court that was overreaching by substituting its judgment for that of health experts. “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," Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor wrote in a joint dissent.
When crafting the OSHA rule, White House officials always anticipated legal challenges — and privately some harbored doubts that it could withstand them. The administration nonetheless still views the rule as a success at already driving millions of people to get vaccinated and for private businesses to implement their own requirements that are unaffected by the legal challenge.
Both rules had been challenged by Republican-led states. In addition, business groups attacked the OSHA emergency regulation as too expensive and likely to cause workers to leave their jobs at a time when finding new employees already is difficult.
The vaccine mandate that the court will allow to be enforced nationwide covers virtually all health care workers in the country. It applies to health care providers that receive federal Medicare or Medicaid funding, potentially affecting 76,000 health care facilities as well as home health care providers. The rule has medical and religious exemptions.
Decisions by federal appeals courts in New Orleans and St. Louis had blocked the mandate in about half the states. The administration already was taking steps to enforce it elsewhere.
In the healthcare case, only justices Clarence Thomas and Samuel Alito noted their dissents. “The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it. At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have,” the justices wrote in an unsigned opinion, saying the “latter principle governs” in the healthcare cases.
More than 208 million Americans, 62.7% of the population, are fully vaccinated, and more than a third of those have received booster shots, according to the federal Centers for Disease Control and Prevention. All nine justices have gotten booster shots.
The justices heard arguments on the challenges last week. Their questions then hinted at the split verdict that they issued Thursday.
Associated Press writer Zeke Miller contributed to this report.