Supreme Court signals skepticism of Biden's workplace COVID-19 vaccine-or-testing mandate

WASHINGTON – A majority of the Supreme Court signaled Friday it is skeptical of the Biden administration's authority to require millions of Americans who work for large companies to be vaccinated against COVID-19 or submit to weekly testing, as the high court waded into the issue substantively for the first time during the pandemic. 

With the number of infections soaring because of the omicron variant, several of the court's conservative justices indicated that while they believe states may have power to set vaccine requirements, the federal government must clear a much higher standard to do so. 

During more than three hours of arguments, Chief Justice John Roberts said that the federal government appeared to be trying to "cover the waterfront" and require vaccines or other COVID-19 policies for much of the nation rather than for limited populations. That, Roberts suggested, should probably be a decision for Congress rather than federal agencies.  

"This has been referred to – the approach – as a workaround," Roberts said of the requirements. "Fifty years ago Congress passed a general provision but I think certainly it's hard to argue...that that gives free rein to the agencies."

Associate Justice Neil Gorsuch noted it is states that usually set public health requirements.  

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"If there is an ambiguity, why isn't this a major question that therefore belongs to the people's representatives in the states and in the halls of Congress?" he asked.   

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The court's three liberal justices pushed hard on both the need for Americans to get COVID-19 vaccinations and also what they said is the federal government's authority to try to mitigate the danger COVID-19 poses in the workplace and to the national economy. Associate Justice Elena Kagan asserted it is federal agencies, not the courts, that have the expertise to make decisions about fighting disease. 

"It's an extraordinary use of emergency power occurring in an extraordinary circumstance, a circumstance that this country has never faced before," Kagan said. "By this point, two years later, we know that the best way to prevent spread is for people to get vaccinated."

The Supreme Court last year repeatedly declined to take up challenges to state vaccine mandates in Maine, New York and at a public university in Indiana. Most of those cases were focused on whether states could impose such mandates without including an exemption for religious objections.

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Opponents of the requirements have pointed to another Supreme Court case from last year: Its decision to block enforcement of the Biden administration's moratorium on evictions. A majority of the court ruled that the Centers for Disease Control and Prevention exceeded its authority with that policy.

Underscoring the challenges all workplaces face in dealing with COVID-19, a significant portion of the arguments unexpectedly took place remotely. Associate Justice Sonia Sotomayor took part from her chambers. Two of the six arguing attorneys took part by phone, with one acknowledging he did so because he had tested positive for COVID-19 the day before.

Seven of the eight remaining justices in the courtroom wore masks for the first time during oral arguments. Gorsuch was the only justice who did not cover his face. The nine justices have been vaccinated and received booster shots, the court has said. 

Several of the justices asked about quickly handing down an order to temporarily block enforcement of the employer requirement while the court takes more time to consider the case. The Labor Department has said it would not act before Monday to enforce its requirement that unvaccinated workers wear masks. It has held off until Feb. 9 on enforcing a requirement that workers get vaccinations or submit to weekly testing.

President Joe Biden announced a series of vaccine policies in November, including for large employers, millions of health care workers and federal contractors. Employers with at least 100 employees were required to stand up vaccine-or-testing programs or face penalties of nearly $14,000 per violation. That requirement alone is estimated to affect two-thirds of the nation's private workforce, or more than 80 million Americans. 

The Supreme Court also heard arguments Friday in a challenge to the administration’s vaccine mandate for health workers who are employed at facilities that accept federal funding, such as through Medicare. The Biden administration has estimated that separate requirement will affect roughly 10 million workers.

In that case, several of the court's conservatives raised questions that seemed to support the government's position. Associate Justice Brett Kavanaugh, for instance, noted it is conservative states who are raising objections to the health care requirement, not large hospitals or health care workers themselves.

Sotomayor, meanwhile, pointed out that the government already heavily regulates health facilities that receive federal funding.   

"I'm having a very hard time understanding how you can say, 'Yes, they could pass a rule that requires people to wear gloves,' or 'they could pass a rule that requires them to isolate individuals who are infected by something' but they can't pass this rule," she said. 

Jesus Osete, Missouri's deputy attorney general, argued that gloves can be removed but that vaccines are a "permanent medical procedure." 

The Occupational Safety and Health Act of 1970 allows OSHA to craft an emergency rule, or emergency temporary standard, when a "grave danger" exists that could expose workers to "substances or agents determined to be toxic or physically harmful or from new hazards." Much of the legal wrangling in the case has involved whether the law allows OSHA to regulate a virus as a dangerous workplace substance. 

The litigation raises fundamental questions about an agency’s power that could have implications far beyond the pandemic, experts say. Some conservatives on the court, such as Associate Justice Clarence Thomas, have long opposed allowing federal agencies to promulgate regulations without specific authority from Congress.

Federal appeals courts have split over the OSHA and health care worker requirements.

The New Orleans-based U.S. Court of Appeals for the 5th Circuit blocked implementation of the OSHA regulation in November, calling it "staggeringly overbroad." But weeks later, the Cincinnati-based U.S. Court of Appeals for the 6th Circuit lifted that order with a 2-1 majority finding the rule appeared to be within the agency’s power.

Lower courts have also disagreed over the legality of Biden’s mandate for health care workers, with the Atlanta-based U.S. Court of Appeals for the 11th Circuit allowing the requirements to continue but the 8th and 5th Circuits blocking its enforcement.

Contributing: Associated Press