Supreme Court Will Hear Emergency Challenges to Biden Vaccine Mandates

Announcement creates more uncertainty for employers, health care workers

Kevin Daley • December 23, 2021 11:45 am

The Supreme Court will hear emergency challenges to two of the Biden administration’s vaccine mandates during a special session in January.

The mandates at issue apply to health care personnel and businesses with at least 100 employees, affecting tens of millions of workers across the nation. A coalition of red states, business groups, and religious organizations say both mandates go beyond the administration’s authority.

The appeals come as the Biden administration is scrambling to scale up testing capacity two years into the pandemic. The employer mandate underscores the testing gaps, as millions of unvaccinated workers could be required to submit to tests they can’t access. President Joe Biden said in an interview Wednesday that he wished he had taken steps to improve the supply of tests earlier, after denying his approach was too lethargic during a press conference on Tuesday.

The announcement creates still more uncertainty for regulated employers. Affected health care workers are supposed to complete their vaccination regimens by Jan. 4. And the Occupational Safety and Health Administration was slated to begin enforcing the employer mandate on Jan. 10. It’s unlikely the appeals will be resolved at that point, so the agency and covered workplaces will be in a holding pattern for the time being.

“The small business economy remains fragile as owners manage several challenges such as staffing shortages and supply chain disruptions while doing their part to end the COVID-19 pandemic,” said Kevin Kuhlman of the National Federation of Independent Business. “These challenges would be exacerbated by the [mandates].” The NFIB is one of the lead plaintiffs in Wednesday’s cases.

The employer rule requires businesses with at least 100 workers to either mandate vaccinations or keep records on the vaccination status of all their employees. Unvaccinated workers must wear a mask at all times and pay for regular testing. As an emergency standard, the rule will remain in place for at least six months. It’s unclear if a permanent analog will follow.

OSHA has imposed emergency workplace standards nine times in its history, but never to compel a medical procedure. Critics of the move stress that OSHA’s regulatory authority is tethered to the workplace itself, while COVID transmission is possible anytime, anyplace.

“A nationwide vaccine mandate that has nothing to do with workplace risk is a dangerous and unlawful use of executive power,” said Ohio attorney general Dave Yost, who leads the red state coalition fighting the mandate. “Congress has not given the president the power to make personal health care decisions for all Americans who just so happen to work at a company with at least 100 employees.”

The Sixth U.S. Circuit Court of Appeals upheld the mandate on Dec. 17, prompting a flurry of emergency appeals to the Supreme Court. The Justice Department will respond to those appeals in legal filings due Dec. 30. Some 80 million workers are covered under the rule.

The health care rule dictates that providers or suppliers who take Medicare or Medicaid funds must mandate vaccinations in their workplaces. The rule covers about 10 million medical personnel, 2.5 million of whom are unvaccinated, according to court documents. The Biden administration asked the High Court for clearance to enforce the directive across the country on Dec. 16, after two federal appeals courts put it on hold across 24 states.

Wednesday night’s orders mark the third time this term that the Court has scheduled oral arguments in an emergency appeal, which are usually resolved on the legal papers alone without a thorough explanation. The Court’s emergency procedures have come under heavy criticism in recent months from predominantly left-wing sources. The pattern is a sign that some of the justices are sensitive to those criticisms and adjusting accordingly.

The cases are No. 21A244 NFIB v. Department of Labor and No. 21A240 Biden v. Missouri.