Supreme Court to consider Biden's vaccine requirements

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Washington — As the nation continues to battle the fast-spreading Omicron variant, the Supreme Court is convening Friday for a special session to weigh disputes over whether President Biden's COVID-19 vaccine requirements for health care workers and large companies can be implemented.

The rules were announced by Mr. Biden in September and issued in November as part of efforts to combat the coronavirus pandemic, which is poised to enter its third year. The requirements have since been subject to a slew of lawsuits brought by Republican-led states, business associations and companies, which argue the Biden administration overstepped its authority in imposing them.

The legal battles over the two policies arrived at the Supreme Court through emergency requests last month, and the court moved to swiftly schedule oral arguments.

At the heart of the first set of cases is a rule from the Occupational Safety and Health Administration (OSHA) that requires businesses with at least 100 employees to either require workers to be either fully vaccinated against COVID-19 or subject to weekly testing and wear face masks. The vaccine-or-test rule was set to take effect January 4, but OSHA said it will not start issuing citations tied to the new policy before February 9 as long as an employer “is exercising reasonable, good faith efforts to come into compliance” with it.

More than 80 million employees could be impacted by the vaccine-or-test rule, according to the Biden administration, and OSHA has estimated the requirement would save over 6,500 workers' lives and prevent more than 250,000 hospitalizations over the next six months.

GOP-led states, businesses covered by the vaccine policy, business associations and religious groups filed challenges to the OSHA rule in courts from coast to coast, and a divided three-judge panel on the 6th U.S. Circuit Court of Appeals — which heard consolidated cases — said last month the policy could take effect.

Twenty-seven states, along with the National Federation of Independent Business and other entities, then asked the Supreme Court to intervene and block OSHA from enforcing the rule.

Ohio Attorney General Dave Yost told the court in a filing Monday that while states share OSHA's “strong interest” in mitigating the spread of COVID-19, “federal agencies cannot bend the law to pursue whatever means they think will most effectively bring about a worthy end.”

But the Justice Department argued in a separate brief that OSHA acted within its authority under federal law in issuing the vaccine-or-test policy.

“The nation is facing an unprecedented pandemic that is sickening and killing thousands of workers around the country, and any further delay in the implementation of the standard will result in unnecessary illness, hospitalizations, and deaths because of workplace exposure to” COVID-19, Solicitor General Elizabeth Prelogar said.

The second court battle the Supreme Court will weigh involves a rule from the Centers for Medicare and Medicaid Services (CMS) requiring workers at an array of facilities that participate in Medicare and Medicaid to be vaccinated against COVID-19. Health care workers covered by the requirement were required to receive their first shot by December 6 and had until January 4 to be fully vaccinated. The rule from CMS does not have a testing option for unvaccinated staff who refuse to comply, but does include medical and religious exemptions.

An estimated 17 million workers across 76,000 facilities are affected by the vaccine rule from CMS, according to the Biden administration. 

Several states challenged the policy for health care workers, and its enforcement was blocked in 24 states. The Justice Department asked the Supreme Court to allow the rule to go into effect in places where its implementation is currently stalled.

Prelogar told the justices in a brief Monday that the vaccine requirement for health care workers “has never been more necessary than it is now,” and the states' claims about the policy's effect on staffing “pale in comparison to the overwhelming public interest in saving lives and preventing serious illness.”

“Requiring facilities to ensure that health care workers are vaccinated against COVID-19 substantially reduces the likelihood that those workers will contract the virus and transmit it to patients,” she said. “That protection is especially important for Medicare and Medicaid beneficiaries, who are disproportionately vulnerable to severe negative outcomes from COVID19. And it is particularly necessary in healthcare facilities, where close contact is inevitable and physical distancing is often impossible — and where patients typically have no practical ability to avoid exposure to unvaccinated staff members.”

But a group of 14 states led by Louisiana argued that if the Supreme Court sides with the Biden administration, allowing the vaccine rule for health care workers to take effect, millions will be out of compliance and face termination, with rural communities already under strain and disparately impacted. Additionally, they said the mandate is “plainly unlawful.”

“If the injunctions are lifted, healthcare workers are put to the choice immediately, with little or no time to comply before losing their jobs,” the states told the justices. “And states, who were not consulted, face immediate destabilization of their Medicaid provider bases and must assume the task of enforcing the very mandate that causes this disastrous result.”

The court's decision to hear arguments comes as the Omicron variant has swiftly overtaken the Delta variant as the dominant strain in the U.S., making up more than 95% of new COVID-19 infections, according to the Centers for Disease Control and Prevention.

The White House has said the two vaccine policies are key for ensuring employees and patients.

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