16209286 / 2021 Antwon Mcmullen | Dreamstime
Vaccine Or Test Mandate

Supreme court blocks vax mandate for manufacturers

Jan. 15, 2022
"It is telling that OSHA has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace," the decision reads

The U.S. Supreme Court on Jan. 13 blocked enforcement of the Biden administration’s vaccine-or-test mandate for companies nationwide with 100 or more employees.

Many observers had predicted this outcome from a court that now leans heavily conservative, by a 6-3 margin. In a separate 5-4 ruling, the Court allowed a similar mandate limited to most healthcare workers to remain in effect.

Most of the conservative justices sounded skeptical during oral arguments on Jan. 7 about the scope of authority vested in the Occupational Safety and Health Administration, the federal agency that, on Nov. 5, issued the mandate, or “emergency temporary standard” (ETS). The OSHA rules were expected to affect 84 million employees nationwide. 

The conservatives on the court spoke directly to that skepticism of OSHA’s authority in their Jan. 13 ruling: “It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace. This ‘lack of historical precedent,’ coupled with the breadth of authority that [Labor Secretary Marty Walsh] now claims, is a ‘telling indication’ that the mandate extends beyond the agency’s legitimate reach.”

The conservatives also wrote: “That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible.”

In a concurrence, which Justices Clarence Thomas and Samuel Alito joined, conservative Justice Neil Gorsuch added: “The question before us is not how to respond to the pandemic, but who holds the power to do so. The answer is clear: Under the law as it stands today, that power rests with the states and Congress, not OSHA.”

The three progressives on the court—Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan—predictably dissented, leading with a reminder that “COVID-19 poses grave dangers to the citizens of this country—and particularly, its workers. So, the administrative agency charged with ensuring health and safety in workplaces did what Congress commanded it to: It took action to address COVID-19’s continuing threat in those spaces.”

“In our view, the court’s order seriously misapplies the applicable legal standards. And in so doing, it stymies the federal government’s ability to counter the unparalleled threat that COVID-19 poses to our nation’s 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.”

Responding to the ruling, National Association of Manufacturers President and CEO Jay Timmons pointed out that NAM members have been at the forefront of "innovating and sustaining safe workplace practices" from the very beginning of the pandemic.

“Today’s ruling does not change the fact that getting vaccinated is the best defense against COVID-19 and central to our ability to keep businesses and schools open and prevent our hospitals from being overwhelmed," Timmons said. "Manufacturers believe strongly in getting our teams armed against COVID-19, and we appreciate the administration’s sustained focus on making vaccines accessible to every American."

Chris Spear, president and CEO of American Trucking Associations (ATA), which fought the vaccine-or-test mandate from the time it was issued in November and joined a wide array of petitioners in various courts to fight it, sounded jubilant in an email to ATA members after the court posted the ruling on its website.

“Just a few minutes ago, the U.S. Supreme Court issued a stay of the Biden Administration’s vaccine-or-test mandate for employers. Today, ATA has won a tremendous victory on behalf of the trucking industry and workers and employers everywhere,” Spear said. “Today’s ruling by the Supreme Court validates our claim that OSHA far overstepped its authority in issuing an emergency temporary standard that would interfere with individuals’ private health-care decisions.”

ATA had joined numerous groups, including its member state trucking associations and other stakeholders such as several conservative state attorneys general and religious organizations, in opposing the OSHA ETS all the way up the Supreme Court.

The OSHA mandate in fact had wound its way through various appeals courts—some that blocked, or “stayed,” enforcement of it (the conservative Louisiana-based 5th U.S. Circuit Court of Appeals, forcefully, on Nov. 12) and others that let the vaccine-or-test rules go forward (the more moderate 6th U.S. Circuit on Dec. 17 by a narrow 2-1 margin) before it ended up at the High Court.