EMERGENCY DOCKET

Justices field emergency requests on federal vaccine policies for workplaces, health care facilities

As the COVID-19 pandemic enters its third year and the omicron variant causes a spike in cases, challenges to efforts by policymakers to respond to the pandemic continue to arrive at the Supreme Court.

On Friday night, within hours of a ruling by the U.S. Court of Appeals for the 6th Circuit that reinstated the Biden administration’s vaccine-or-test mandate for large employers, several of the plaintiffs challenging the rule came to the court, asking the justices to stay the 6th Circuit’s ruling while their appeals proceed. Also pending before the justices is an emergency request from the administration to lift lower-court rulings that have blocked a vaccine mandate for workers at health care facilities that receive federal funding.

The vaccine-or-test mandate was issued by the Occupational Safety and Health Administration on Nov. 5. It requires all employers with more than 100 employees to mandate that those employees either be fully vaccinated against COVID-19 or be tested weekly and wear masks at work.

Numerous challenges to the rule followed immediately in courts around the country, filed by (among others) employers, business groups, religious groups, and Republican-led states. They contend that the policy exceeds OSHA’s authority. The U.S. Court of Appeals for the 5th Circuit temporarily put the mandate on hold last month, calling the rule “fatally flawed” and “staggeringly overbroad.” But through an obscure process known as the multicircuit lottery, all of the challenges were subsequently assigned to the 6th Circuit. A divided panel of that court reinstated the OSHA mandate on Friday after the full 6th Circuit rejected, by a vote of 8-8, a request to have the case be decided by the full court.

Judge Jane Stranch began her 33-page opinion by noting that the “COVID-19 pandemic has wreaked havoc across America.” OSHA, Stranch stressed, “has long regulated health and safety in the workplace” – including to protect workers from infectious disease. And OSHA reasonably concluded, Stranch continued, that the mandate was necessary to guard against COVID-19.

Several of the challengers came quickly to the Supreme Court, asking the justices to follow the 5th Circuit’s lead and put the mandate on hold while litigation over its validity continues. One such request came from a group of companies (located in, among other places, Ohio and Michigan). The companies argued that although the mandate “is one of the most far-reaching and invasive rules ever promulgated by the Federal Government,” OSHA’s authority to issue the mandate rests on a “workplace-safety provision” that “contains no explicit authority to mandate vaccination for an extensive portion of the American people.” The companies also contended that the mandate “threatens to impose mass damage across the entire American economy including further hobbling already strained supply chains.”

Another request to freeze the 6th Circuit’s ruling came from a group of Christian non-profits and businesses. They told the justices that OSHA cannot regulate religious non-profits because they are not “employers.” And in any event, they added, the mandate violates the First Amendment because it “commandeers” the religious institutions to require their employees to comply with the mandate.

Louisiana grocery store owner Brandon Trosclair also asked the justices to stay the 6th Circuit’s decision allowing the mandate to go into effect, while a press release from First Liberty Institute indicated that the group similarly planned to seek emergency relief from the court.

The applications asking the justices to put the Biden administration’s test-or-vaccine mandate on hold came to the court just one day after the Biden administration sought emergency relief at the court regarding a different vaccine mandate. On Thursday, the federal government asked the justices to allow it to temporarily enforce a vaccine mandate, with religious and medical exemptions, for health-care workers at facilities that participate in the Medicare and Medicaid programs. Lower-court rulings have blocked the administration from enforcing that mandate in about half the states. The justices ordered the challengers in those cases to respond by the afternoon of Dec. 30.

This article was originally published at Howe on the Court.