By Jerri-Lynn Scofield, a former securities attorney and derivatives trader.She is currently writing a book about textile artisans.

The U.S. Supreme Court weighed the Biden administration’s COVID-19 vaccine mandate yesterday, offering two separate, unsigned per-curiam opinions, National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration and Biden v Missouri,

The results were not surprising and were largely reflected in the drift of oral arguments, which took place less than a week before those decisions were made.

Private Employer Vaccine Authorization Temporarily Blocked

In the first ruling, the court temporarily blocked the implementation of a rule promulgated by the Occupational Safety and Health Administration (OSHA) that would require employees of businesses with more than 100 employees to be vaccinated against COVID-19 or receive weekly at their own expense Test and wear a mask at work.

The OSHA rules took effect three days before yesterday’s Supreme Court ruling. The rule takes precedence over violations of state law and applies to about 84 million employees.

The court did not comment on the merits of the OSHA rule, but only blocked its enforcement, while a legal challenge is still pending on the U.S. Court of Appeals for the Sixth Circuit. However, the court will almost certainly grant the certificate considering the merits of the OSHA rule. Yesterday’s ruling leaves no doubt as to the Court’s majority view on the merits of the challenge.

Scotts Blog A succinct summary of the court’s decision:

The court described the task as a “major violation of the lives and health of a large number of employees” and stressed that Congress must be clear if it intends to give federal agencies the power to “exercise enormous economic and political power.” “

In this case, the court continued, Congress did not. It gives the Labor Department the power to set workplace safety standards, not “broad public health measures.” The court acknowledged that while COVID-19 “is a risk that occurs in many workplaces,” it is not a risk that workers experience simply because of their work – COVID-19 can spread almost anywhere people gather. “Allowing OSHA to regulate the dangers of everyday life — simply because most Americans have jobs and face the same risks — would significantly expand OSHA’s regulatory authority without explicit congressional authority,” the court concluded. Last week, the court noted that the fact that OSHA had never adopted a similar provision was a “clear indication” that the authorization of a vaccine or test was beyond the agency’s authority.

The handwriting is clearly engraved on the wall. Liberal and conservative judges are fundamentally divided over who should decide on pandemic policy. On the one hand, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, the court’s most liberal jurists, disagree, arguing that the issue is the prerogative of the federal government, acting through OSHA.On the other hand, however, three conservative justices, Clarence Thomas, Samuel Alito and Neil Gorsuch, agreed that such a policy is a matter for states and Congress to decide

According to the SCOTUS blog:

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan issued a rare joint dissent in which they complained that employees “more than anyone else” had “little control” rights and therefore have little ability to mitigate the risks posed by the spread of COVID-19.” They argued that the majority’s ruling “impedes the ability of the federal government to respond to the unprecedented threat COVID-19 poses to our nation’s workers.”

Opponents addressed the same question that was at the heart of the unanimous opinion from Justices Neil Gorsuch (and joined by Justices Clarence Thomas and Samuel Alito): Who should decide what to do with the pandemic? For Gorsuch, “the answer is clear”: the state and Congress. Dissidents have come to a very different conclusion: OSHA, with its expertise in workplace safety and its position as a politically responsible government agency, is better suited than “a court that lacks any knowledge” on how to protect workers from COVID-19 infection decision”. How to protect the workplace and exempt you from any damage caused by it. “

In Second Opinion, Court 5-4 Provisionally Upholds Nationwide COVID-19 Vaccine Authorization for Health Care Workers Enrolled in Medicare and Medicaid unless the worker is eligible for medical care Or religious immunity. Chief Justice John Roberts, Justice Brett Kavanaugh and the Supreme Court’s three liberal justices have a majority.

Department of Health and Human Services (HHS) Biden v Missouri In November, it applied to about 10 million medical staff nationwide. Two federal district courts in Louisiana and Missouri have previously blocked enforcement of HHS rules in about half of the states. The decision now clears the way for HHS to carry out its vaccine mission across the country or for health care workers.

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Employers will now have to decide for themselves whether vaccines are required, as federal private sector vaccine authorization is now “temporarily” blocked.as New York Times Report:

The employer’s decision undercut one of President Biden’s most important attempts to contain the virus and left the country with a patchwork of state laws and policies, leaving companies and businesses largely on their own.

Companies have taken different positions on whether to require employees to get vaccinated. According to the New York Times:

Several major companies, including United Airlines and Tyson Foods, have been authorized, while others have delayed and waited for legal disputes to be resolved. Some companies have been worried about losing employees at a time when workers are already scarce. While authorized companies say those concerns are largely unfulfilled, a state requirement could help ease them.

The three largest U.S. employers, Walmart, Amazon and JPMorgan, have yet to make broad demands on their employees. Some waiting companies expressed concern about the cost of setting up testing programs and resistance from unvaccinated employees.

Separate health care worker assignments are maintained and apply to nearly all U.S. health care workers. If HHS pursues this mission aggressively, it could exacerbate the crisis employment situation in the healthcare sector, as many unvaccinated healthcare workers may now choose to quit rather than comply.

States such as California have decided to allow asymptomatic health care workers who test positive to remain on their posts — even though it recommends deploying them to care for COVID-19 patients.

Once the appeals are exhausted, the court may soon grant a scrip to more fully consider the OSHA and HHS vaccine regulations. At that point, it appears that OSHA’s authorization will be completely overturned, while the courts will uphold HHS’s authorization.

State-level vaccine mandates will come to the fore as the Biden administration’s ability to implement a national vaccine policy through OSHA is hampered. Unless Congress decides to act — which is highly unlikely at the moment, especially given the deep divisions in COVID-19 policy and questions about the continued effectiveness of a vaccine, especially as new virus variants emerge.

According to the New York Times:

The Supreme Court has repeatedly upheld state vaccine mandates in a variety of settings in response to constitutional challenges. The two cases decided on Thursday dealt with a different issue of whether Congress has authorized the executive branch to make those requirements.