The United States Supreme Court will hold a hearing on Jan. 7 to consider multiple legal challenges mounted by states and private business groups who are seeking to overturn the Biden Administration’s Covid 19 vaccine mandates for private workplaces and certain healthcare workers.
Chief Justice John Roberts announced the hearing just before Christmas. This subsumed a Dec. 30 hearing that Justice Brett Kavanaugh scheduled earlier to consider opponents’ requests for the high court to schedule a hearing to review the Biden vaccine mandates.
Under one of the challenged orders, the Occupational Safety and Health Administration’s emergency temporary standard (ETS) requires that workers for employers with 100 or more employees must be vaccinated against Covid 19 or be tested regularly for the virus.
The court also will review the mandate issued by the Centers for Medicare and Medicaid Services (CMS) that had required more than 10.3 million healthcare workers paid through the Medicare and Medicaid programs show they were fully vaccinated no later than Jan. 4
The actions taken by Roberts and Kavanaugh came on the heels of several federal appeals court decisions that created confusion among employers by upholding, then later lifting in a seemingly haphazard way, preliminary injunctions that had been previously granted.
In one of these cases, two members of a three-judge appeals court panel withdrew a nationwide injunction blocking OSHA enforcement of the ETS granted earlier by a federal district court.
A different appeals court modified a similar district court nationwide stay of the CMS mandate so that it then applied only in 24 states, thus creating an administrative nightmare for multistate employers who provide the covered healthcare services
While all of this is going on in regard to these two orders, an injunction blocking the enforcement of a third government vaccine mandate for federal contractors and subcontractors continues to remain in force.
The Supreme Court hearing on Jan. 7 will consider charges that the administration exceeded its constitutional powers when, under the President’s direct orders, OSHA and CMS issued their mandates in the absence of any congressional approval and also failed to take the steps needed to meet long-established federal rulemaking procedures required under law.
Vaccine mandates have raised emotions already heightened after a year and a half of Americans having to deal with lockdowns, facemask rules and this year’s mixed messages over Covid vaccinations, which went from being strongly recommended by political leaders to being forced on anyone reluctant to get the jab, under threat of the loss of jobs. The messaging was not helped by having a U.S. President repeatedly condemn the unvaccinated as irresponsible purveyors of death.
The Supreme Court hearing will take place as passions have been further inflamed by the latest surge in cases driven by a new virus variant with the science fiction-sounding name of Omicron.
Passions have been running high for some time, even among the federal judges who have been handling the legal challenges to the mandate rules.
In oversimplified terms, the legal arguments boil down to the belief that Biden and the federal agencies exceeded their roles assigned by the Constitution vs. the view that the deadly national emergency justified the President taking these extraordinary measures.
The justices also will have to confront new issues raised by Omicron surge, which threaten to turn upside down previous governmental approaches to battling the pandemic.
Although the initial evidence may be contradicted later, it appears that with the increasingly prevalent Omicron variant, Covid is not a disease of the unvaccinated – as Biden and others have continued to insist – but is in fact a disease of the vaccinated.
Government public health officials have suggested that the vaccinations have lessened the severity of the disease, but that has not yet been confirmed. It is highly contagious, which is why it rapidly supplanted the Delta variant, but even in areas in this and other countries with fewer people, the symptoms seem to be relatively mild.
It also has been suggested that those people who contract Omicron will enjoy the benefit of acquiring strong natural immunity – which vaccine mandate advocates have so far refused to admit exists.
In fact, the advent of Omicron has forced policymakers to confront the reality that the Coronavirus may never go away. After the current hysteria passes, we will need to learn to live with the virus, adding therapeutic treatments to the mix and abandoning the extreme measures imposed on populations that have created other health disasters.
It is known that last year’s lockdowns are directly responsible for damaging children’s development and educational progress, while psychological damage led to widespread depression, spousal abuse, and suicide. And that doesn’t even include the economic devastation experienced by many.
What Employers Should Do
While the OSHA ETS was blocked by injunction, a deadline for initial actions employers were expected to take passed, and the Jan. 4 deadline for employers to have vaccination and testing procedures underway is coming up fast.
OSHA responded to the earlier lifting of the stay by announcing that it would not issue citations for noncompliance with any requirements of the ETS before Jan. 10 and will not issue citations for noncompliance with the standard’s testing requirements before Feb. 9.
The Supreme Court may strike down the OSHA mandate, but that is not something an employer can count on at this point. Lawyers say it is best to prepare for the mandate in case it is upheld.
Initial steps employers should take are:
• Start reporting work-related Covid 19 fatalities to OSHA within eight hours of the employee’s death and any work-related Covid 19 in-patient hospitalizations within 24 hours.
• Issue to employees your written policy on vaccines and testing in lieu of vaccination, and information about OSHA anti-discrimination and retaliation; prohibitions on providing false statements and documents.
• Require that unvaccinated employees must wear a face covering or face mask in the workplace most of the time they are there.
• Make sure to provide employees with up to four hours of paid time off to receive a dose of a vaccine.
• Provide employees with a reasonable amount of paid sick time to recover from any side effects from receiving each dose of a Covid 19 vaccine.
The most burdensome requirement is the deadline for employers to determine workers’ vaccination status, which includes collecting and retaining proof and creating a roster of employee vaccination status. Similar records need to trace employees who decline vaccination and agree to regular testing.
