The US Supreme Court's Rulings on Large Business and Health Care Worker Vaccine Mandates

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January 21, 2022

The US Supreme Court’s Rulings on Large Business and Health Care Worker Vaccine Mandates

Ramifications for the COVID-19 Response and the Future of Federal Public Health Protection

Lawrence O. Gostin, JD1; Wendy E. Parmet, JD2; Sara Rosenbaum, JD3

JAMA. Published online January 21, 2022. doi:10.1001/jama.2022.0852

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The Court’s reasoning in National Federation of Independent Business could considerably curtail existing and future federal agency action to address major national and global hazards, at least for regulations that have significant effects on society and the economy. Many agency regulations do have such effects beyond those issued by the departments of Labor and Health and Human Services. The logic of requiring explicit congressional authority for “major” questions could significantly constrain agencies in effectively responding to new or significant health and safety threats.

Congress has historically granted agencies wide and flexible authority for good reason. Public health agencies, not Congress, possess the expertise to respond to complex and changing scientific evidence. As the COVID-19 pandemic has shown, Congress also cannot know what future risks the population will face, so it affords agency officials flexibility. Because most health hazards affect whole regions and even the entire nation, states acting alone are unable to take effective measures without federal regulation.

As Justices Breyer, Sotomayor, and Kagan wrote in their dissent in the OSHA case, the majority’s decision “stymies the Federal Government’s ability to counter unparalleled” threats.

By limiting the federal government’s ability to flexibly protect public health, the justices gave themselves an outsize role in formulating federal health policy, with significant ramifications that will remain long after the pandemic ends.

HYPOCRISY AND HEALTH: WORKPLACE SAFETY AT RISK AFTER SCOTUS BLOCKS VACCINE MANDATE FOR LARGE BUSINESSES

Posted by The Conversation | Jan 23, 2022 | COVID-19, Syndicated

By Debbie Kaminer, Professor of Law, Baruch College, CUNY

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The Supreme Court essentially determined that because the risk of COVID-19 exists both within as well as outside the workplace, OSHA does not have the authority to generally protect employees across workplaces. In doing so, the majority essentially determined that the court – and not OSHA – is the institution that should make health policy and decide which workplaces are high enough risk that a vaccine mandate is appropriate.

The dissenting justices responded with incredulity: “In the face of a still-raging pandemic, this court tells the agency charged with protecting safety that it cannot respond in the most effective way possible. Without legal basis, the court usurps a decision that rightfully belongs to others.”

The majority did recognize, however, that “where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible.”

It remains to be seen how narrow a government agency mandate must be to be upheld by the Supreme Court. While the majority of Americans are already fully vaccinated, and approximately 75% of all Americans have received at least one dose of the COVID-19 vaccine, mandates will likely remain an important tool in continuing to fight the pandemic.