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Federal OSHA recently enacted a vaccine mandate for much of the Nation’s work force. The mandate, which employers must enforce, applies to roughly 84 million workers, covering virtually all employers with at least 100 employees. Many States, businesses, and nonprofit organizations challenged OSHA’s rule in Courts of Appeals across the country. The litigation efforts to stop the mandate ultimately ended up in the US Supreme court which heard oral arguments on the issues, and published a ruling in the case of National Federation of Independent Businesses v OSHA.

The 6-3 majority of Justices ruled against the OSHA imposed vaccine mandate finding that “Applicants are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate. Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided. The Secretary has ordered 84 million Americans to either obtain a COVID-19 vaccine or undergo weekly medical testing at their own expense. This is no ‘everyday exercise of federal power.’ “

The dissenting opinion said that OSHA’s mandate is comparable to a fire or sanitation regulation imposed by the agency. But the majority responded that “a vaccine mandate is strikingly unlike the workplace regulations that OSHA has typically imposed. A vaccination, after all, ‘cannot be undone at the end of the workday.’ “

“We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.”  And the opinion added that “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly,” Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”

President Biden responded to the ruling by saying “I am disappointed that the Supreme Court has chosen to block common-sense life-saving requirements for employees at large businesses that were grounded squarely in both science and the law,” And he concluded by saying that “The Court has ruled that my administration cannot use the authority granted to it by Congress to require this measure, but that does not stop me from using my voice as President to advocate for employers to do the right thing to protect Americans’ health and economy,”

However in the companion case of Biden v Missouri, the 5-4 majority approved the HHS/CMS omnibus rule mandating that medical facilities nationwide order their employees, volunteers, contractors, and other workers to receive a COVID-19 vaccine.

The majority reasoned that “COVID-19 is a highly contagious,dangerous, and – especially for Medicare and Medicaid patients – deadly disease. The Secretary of Health and Human Services determined that a COVID-19 vaccine mandate will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients.”

They concluded that the HHS/CMS rule “thus fits neatly within the language of the statute. After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm.”