January 23, 2022

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Supreme Court rejects rule that would have required 80 million workers to be vaccinated or test – Crain’s Detroit Business

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The U.S. Supreme Court on Thursday blocked the centerpiece of President Joe Biden’s push to get more people vaccinated amid a COVID-19 surge, rejecting an Occupational Safety and Health Administration rule that would have required 80 million workers to get shots or periodic tests.

The court allowed a separate rule to take effect requiring vaccines for workers in nursing homes, hospitals and other facilities that receive Medicare and Medicaid payments from the federal government.

In its written opinion, the court said the OSHA rule would transform the agency into a public health arbiter rather than a workplace safety rulemaker.

“Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most,” the Supreme Court opinion reads. “COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life — simply because most Americans have jobs and face those same risks while on the clock — would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

It continues: “OSHA’s indiscriminate approach fails to account for this crucial distinction — between occupational risk and risk more generally — and accordingly the mandate takes on the character of a general public health measure, rather than an ‘occupational safety or health standard’.”

In dissent, the court’s three liberal justices 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.

The ruling is likely a relief for companies, many of which implemented a testing or vaccine mandate ahead of the Jan. 10 compliance deadline.

Auburn Hills-based auto supplier BorgWarner Inc. implemented its testing and vaccine strategy earlier this week, where employees who chose not to get vaccinated against the coronavirus must be tested weekly at their own expense. The rule covered its 7,000 U.S. employees, including 1,500 in Michigan.

Michelle Collins, global director of public relations and marketing for the supplier, said the company has not yet made a decision to revoke the rule following the Supreme Court decision.

Courtney Nichols, partner and co-leader of the labor and employment practice at law firm Plunkett Cooney, is already telling clients they are not longer required to implement a vaccine mandate or testing requirement but is advising clients the door is not closed on another rule coming down from OSHA.

“They did not close the door on any COVID-19 related regulations, noting that targeted regulations are ‘plainly permissible’ where the virus poses a ‘special danger because of the particular features of an employee’s job or workplace,'” Nichols said.

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 health care 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 health care cases.

The decision comes more than two months after the U.S. Department of Labor released the final emergency rules from the Occupational Safety and Health Administration and Centers for Medicare and Medicaid Services to force employers to mandate the COVID-19 vaccine and testing programs.

Under that plan, companies with 100 or more employees had to have written documentation of all who are vaccinated or put protocols in place for a weekly testing program. It also required health centers to have all employees vaccinated or terminate unvaccinated employees. OSHA did not issue any fines while it was being discussed by the Supreme Court.

On Jan. 7, the justices met in a special argument session, where the more conservative members voiced skepticism about the rule, which business groups and Republican-led states say exceeds the workplace-safety agency’s authority. Two lawyers arguing against the Biden administration had to make their arguments over the phone after they tested positive for the coronavirus.

The pandemic “sounds like the sort of thing that states will be responding to or should be, and that Congress should be responding to or should be, rather than agency by agency the federal government and the executive branch acting alone,” Chief Justice John Roberts said.

As of Thursday, 79.3 percent of Americans 5 and older have been vaccinated against COVID, according to the Centers for Disease Control and Prevention. However, in Michigan, that number is at 60.8 percent and is even lower in Wayne County at 54.9 percent.

— Crain’s Senior Reporter Dustin Walsh, The Associated Press and Bloomberg contributed to this report.



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