By Robert Barnes,
The Supreme Court on Wednesday night announced it will hold a special hearing next month to consider challenges to the Biden administration’s pandemic efforts affecting millions of workers, a nationwide vaccine-or-testing requirement for large employers and a separate coronavirus vaccine mandate for health-care workers.
Both policies have been at least partially blocked from going into effect by lower courts after challenges from Republican-led states, and from business and religious coalitions.
It is highly unusual for the justices to schedule such hearings on emergency requests. Both will be considered Jan. 7, the Friday before the court was to resume its normal schedule of oral arguments.
One of the cases involves a rule from the Occupational Safety and Health Administration (OSHA) that requires employers with 100 or more workers to have staff vaccinated or tested on a regular basis.
The other is from the Centers for Medicare & Medicaid Services, and it requires vaccination for workers at facilities that receive federal funds tied to those programs.
The White House said Wednesday evening that it is “confident in the legal authority for both policies and [the Department of Justice] will vigorously defend both at the Supreme Court.”
“Especially as the US faces the highly transmissible Omicron variant, it is critical to protect workers with vaccination requirements and testing protocols that are urgently needed,” White House press secretary Jen Psaki said in a statement.
More than half the states and coalitions of business and religious groups are asking the justices for emergency action to block the OSHA rules, which would cover an estimated 80 million workers.
And the Biden administration asked the court to intervene to lift lower-court decisions that have blocked a vaccine mandate for what is estimated to be about 17 million health-care workers.
The court had called for additional briefing in those cases by Dec. 30. Under its normal procedures, the justices would then make a decision about whether to block or allow the policies while litigation continued.
But the court has been criticized for decisions issued under its emergency docket, which has also been called its “shadow docket.” This makes the third time this term the court has instead scheduled public arguments. The previous cases involved a controversial Texas law that restricts abortion, and the other concerned the rights of inmates to have spiritual advisers close by at the time of execution.
The court’s decision to hold hearings on the vaccine policies comes at a time of great tension and uncertainty in the pandemic, with the highly transmissible omicron variant contributing to a sharp rise in infections and causing state and local governments to scramble.
A divided panel of the U.S. Court of Appeals for the 6th Circuit, which last week said the OSHA requirement could go into effect, said the federal government was dealing with an emergency.
The directive, wrote Judge Jane B. Stranch, “is an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs.”
The Supreme Court generally has been supportive of decisions by local governments and universities to require vaccination. But the justices also have been skeptical of federal agencies’ power to mandate pandemic-related responses. For instance, it ended a moratorium on evictions imposed by the Centers for Disease Control and Prevention, saying it was beyond the agency’s authority.
The justices’s own workplace has been closed to the public since March 2020. The court, all of its members vaccinated, began hearing cases in person this fall, but with limited attendance. Lawyers arguing cases and credentialed reporters watching the proceedings are not required to be vaccinated but must have received negative test results.
The 6th Circuit’s decision on the OSHA regulations was immediately brought to the high court. More than a dozen challenges have been recorded this week.
The Labor Department rules say employers with more than 100 workers must require them to be vaccinated or face weekly testing and mandatory masking. There are exceptions for employees who do not work on-site or with others, and for other reasons. OSHA has set a Feb. 9 compliance deadline.
In the challenge brought by 27 states, Ohio Attorney General Dave Yost (R) calls the OSHA requirement “a historically unprecedented administrative command.”
“This case does not present the question whether vaccines or vaccine mandates are wise or desirable,” he wrote. “Instead, it presents the narrow questions whether OSHA had authority to issue the mandate, and whether it lawfully exercised whatever authority it had.”
Stranch said Congress intended for OSHA to be able to impose emergency temporary standards in times of great peril.
“Vaccination and medical examinations are both tools that OSHA has historically employed to contain illness in the workplace,” wrote Stranch, a nominee of President Barack Obama.
Dissenting from the decision was Judge Joan Larsen, a nominee of President Donald Trump.
“The virus that causes COVID-19 is not, of course, uniquely a workplace condition. Its potency lies in the fact that it exists everywhere an infected person may be — home, school, or grocery store, to name a few,” Larsen wrote. “So how can OSHA regulate an employee’s exposure to it?”
The requirement regarding health-care workers has gotten a mixed response in lower courts. The U.S. Court of Appeals for the 11th Circuit turned down a challenge, but two other courts have stopped the requirement from taking place in a combined 24 states.
Acting U.S. solicitor general Elizabeth B. Prelogar asked the justices to allow the requirement, which includes an exemption for religious and medical reasons, to take effect.
“It is difficult to imagine a more paradigmatic health and safety condition than a requirement that workers at hospitals, nursing homes, and other medical facilities take the step that most effectively prevents transmission of a deadly virus to vulnerable patients,” she wrote.