Supreme Court halts COVID-19 vaccine rule for US businesses

Mark Sherman
Associated Press

Correction: This story corrects that four justices noted dissents in the health care vaccine case, not just Alito and Thomas.

Washington – The Supreme Court has stopped a major push by the Biden administration to boost the nation’s COVID-19 vaccination rate, a requirement that employees at large businesses get a vaccine or test regularly and wear a mask on the job.

At the same time, the court is allowing the administration to proceed with a vaccine mandate for most health care workers in the U.S. The court’s orders Thursday came during a spike in coronavirus cases caused by the omicron variant.

The court’s conservative majority concluded the administration overstepped its authority by seeking to impose the Occupational Safety and Health Administration’s vaccine-or-test rule on U.S. businesses with at least 100 employees. More than 80 million people would have been affected and OSHA had estimated that the rule would save 6,500 lives and prevent 250,000 hospitalizations over six months.

“OSHA has never before imposed such a mandate. Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here,” the conservatives wrote in an unsigned opinion.

In dissent, the court’s three liberals argued that it was the court that was overreaching by substituting its judgment for that of health experts. “Acting outside of its competence and without legal basis, the Court displaces the judgments of the Government officials given the responsibility to respond to workplace health emergencies,” Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor wrote in a joint dissent.

President Joe Biden said he was “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.”

Biden called on businesses to institute their own vaccination requirements, noting that a third of Fortune 100 companies already have done so.

The decision had at least one major Metro Detroit employer examining its COVID-19 procedures.

Stellantis N.V. said it was reviewing its policies. The Jeep SUV and Ramp pickup truck maker had announced a vaccine mandate for non-union represented employees that was supposed to take effect last week, but the automaker delayed the deadline as it postponed return-to-work plans. Of the 14,000 workers subject to that mandate, 96% are vaccinated or have an exemption.

“We continue to strongly advocate for our employees to get vaccinated and boosted as one of the most effective ways to protect themselves and those around them from serious illness related to COVID-19,” spokeswoman Jodi Tinson said in a statement.

Stellantis said more than 50% of its employees have self-certified their vaccination status.

Meanwhile, Ford Motor Co. already has instituted a vaccine mandate for most of its salaried workers. The deadline for that was Jan. 4. 

"Ford continues to strongly encourage all employees who are eligible to get vaccinated, and we are encouraged by the 88% of US salaried employees who are already vaccinated," Ford Motor Co. spokesperson Monique Brentley said in a statement. "We’re reviewing this ruling to determine if any changes are needed to our vaccination policy as we continue to prioritize the safety of our employees."

General Motors Co. hasn’t announced a vaccine requirement.

“While OSHA’s rules are on hold pending further litigation or developments, we continue to take steps to help protect our employees from COVID-19 in the workplace and prepare for the possibility of eventual implementation of future requirements,” GM spokeswoman Maria Raynal said in a statement.

“In the meantime, GM stands firmly in support of COVID-19 vaccination. We continue to strongly encourage employees to get vaccinated. GM’s overriding priority is keeping employees and their families safe. Data consistently show that getting vaccinated is the best way to protect yourself and those around you.”

Vaccine requirements for employees represented by the United Auto Workers are subject to negotiations between the automakers and the union. Current protocols, including required masks and the voluntary disclosure of vaccination status, will remain in place, UAW spokesman Brian Rothenberg said.

The city of Detroit’s largest employer, Rocket Companies Inc., has required unvaccinated workers to be tested weekly since August before OSHA announced its emergency standard. DTE Energy Co. said the ruling doesn't change how it’s keeping workers safe and is encouraging employees to speak with their doctor about getting vaccinated. More than 75% of its 10,600 employees have received at least one COVID-19 vaccination.

“To minimize everyone’s risk from COVID-19, we continue to have as many employees as possible working remotely, and we require all employees to wear a mask and keep distance while working indoors regardless of their vaccination status,” spokesman Dan Miner said in a statement. “We have also been regularly testing people in key workgroups.”

The Listen to MI Business coalition, a group of chambers of commerce representing firms employing more than 1 million employees, had expressed concerns over the economic implications of the standard, the state’s testing capacity and the fluctuating circumstances of the pandemic.

“We strongly support the U.S. Supreme Court’s decision to block the federal vaccine or test mandate on employers with 100 or more employees,” Wendy Block, the Michigan Chamber of Commerce’s vice president of business advocacy and member engagement, said in a statement. “The court fully acknowledged the sweeping and disruptive nature of OSHA’s vaccine mandate and the numerous complexities associated with its implementation. We will continue to encourage vaccines and the necessity of maintaining thoughtful safety protocols in the workplace.”  

The Detroit Regional Chamber celebrated the decision for giving employers and local governments the decision-making power.

“The Chamber continues to be a strong proponent of the efficacy of vaccines and the ability of private employers to implement mandates or other rules that are right for their business," Sandy Baruah, president and CEO of the Detroit Regional Chamber, said in a statement. "The Supreme Court’s decision to strike down the Biden’s administration vaccine requirement for businesses with more than 100 employees puts the decision back where it belongs, with local health officials and individual companies.”

Rep. John Moolenaar, a Republican from Midland, introduced a bill in November that would bar the U.S. Labor, Education and Health and Human Services departments from using federal funds to administer COVID-19 vaccine requirements. The bill was co-sponsored by 33 Republicans.

“Americans should have the right to decide whether or not they want to get the COVID-19 vaccine and today’s ruling is a massive victory,” Moolenar said in a statement. “The Court rightfully determined that the Biden Administration went too far in trying to burden private businesses and force the vaccine on their employees.”

When crafting the OSHA rule, White House officials always anticipated legal challenges – and privately some harbored doubts that it could withstand them. The administration nonetheless still views the rule as a success at already driving millions of people to get vaccinated and encouraging private businesses to implement their own requirements that are unaffected by the legal challenge.

The OSHA regulation had initially been blocked by a federal appeals court in New Orleans, then allowed to take effect by a federal appellate panel in Cincinnati.

Both rules had been challenged by Republican-led states. In addition, business groups attacked the OSHA emergency regulation as too expensive and likely to cause workers to leave their jobs at a time when finding new employees already is difficult.

The National Retail Federation, the nation’s largest retail trade group, called the Supreme Court’s decision “a significant victory for employers.”

The vaccine mandate that the court will allow to be enforced nationwide scraped by on a 5-4 vote, with Chief Justice John Roberts and Justice Brett Kavanaugh joining the liberals to form a majority. The mandate covers virtually all health care workers in the country, applying to providers that receive federal Medicare or Medicaid funding. It affects 10.4 million workers at 76,000 health care facilities as well as home health care providers. The rule has medical and religious exemptions.

Biden said that decision by the court “will save lives.”

In an unsigned opinion, the court wrote: “The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it. At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.” It said the “latter principle governs” in the healthcare arena.

The decision promises to create problems for some Michigan hospitals but not most of the major health systems.

Southfield-based Beaumont Health, Michigan’s largest hospital system, announced a vaccination requirement for employees before the first COVID-19 vaccines were approved by the U.S. Food and Drug Administration. Detroit-based Henry Ford Health System and Michigan Medicine, the University of Michigan health system, were also early adopters of vaccine mandates for their workers.

While the Michigan Health and Hospital Association doesn’t track which hospitals have imposed vaccine mandates, spokesman John Karasinski said some Michigan hospitals have not yet adopted such a policy. Those hospitals may need to scramble to meet a Jan. 27 deadline by the Centers for Medicare and Medicaid Services for all health care workers to have received at least one dose, he said.

“The MHA has not taken a formal position on vaccine mandates. We have always believed that this is best left up to local hospital decision makers. At the same time, the MHA has been a leader in urging the public and health care workers to get vaccinated ever since the safe and effective COVID-19 vaccines were approved,” Karasinski said. 

“However, the timing of this decision by the Supreme Court is extremely challenging,” he added. “Asking hospitals to implement a new policy at a time when resources are scarce would be difficult no matter the focus. However, our members have followed the legal proceedings and are prepared to comply with the policy.”

Justice Clarence Thomas wrote in dissent that the case was about whether the administration has the authority “to force healthcare workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo.” He said the administration hadn’t shown convincingly that Congress gave it that authority.

Justices Samuel Alito, Neil Gorsuch and Amy Coney Barrett signed onto Thomas’ opinion. Alito wrote a separate dissent that the other three conservatives also joined.

Decisions by federal appeals courts in New Orleans and St. Louis had blocked the mandate in about half the states. The administration already was taking steps to enforce it elsewhere.

More than 208 million Americans, 62.7% of the population, are fully vaccinated, and more than a third of those have received booster shots, according to the federal Centers for Disease Control and Prevention. All nine justices have gotten booster shots.

The courthouse remains closed to the public, and lawyers and reporters are asked for negative test results before being allowed inside the courtroom for arguments, though vaccinations are not required.

The justices heard arguments on the challenges last week. Their questions then hinted at the split verdict that they issued Thursday.

A separate vaccine mandate for federal contractors, on hold after lower courts blocked it, has not been considered by the Supreme Court.

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Detroit News Staff Writers Breana Noble, Kalea Hall, Jordyn Grzelewski and Karen Bouffard, and Associated Press writer Zeke Miller contributed.