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Supreme Court nixes employer mandate, upholds health care rule

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President Joe Biden’s administration lost its battle to require large employers vaccinate or test their workers, while winning a fight to have all federally supported health care workers vaccinated.| PHOTO COURTESY OF WHITE HOUSE/ADAM SCHULTZ

WASHINGTON – In a pair of rulings Thursday afternoon, the U.S. Supreme Court struck down the Biden administration’s attempt to require large employers to have their employees vaccinated or tested but upheld a rule requiring vaccination for health care workers at facilities supported by federal funds.

The 6-3 vote in the employer mandate case was along ideological lines, with liberal justices in dissent. In the 5-4 health care case vote though, Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh joined the liberal justices to form a majority.

The denial of the employer mandate is a major blow to President Joe Biden’s plan to try to dramatically increase the number of vaccinated Americans as the nation deals with a surge of new cases fueled by the highly contagious omicron variant.

Private employers with 100 or more employees would have been required to have their workers vaccinated against COVID-19 or test negative at least once a week, impacting an estimated 84 million Americans and causing an estimated 22 million to be vaccinated. Businesses that didn’t comply would have faced fines under the regulation, which was to be enforced by the Occupational Safety and Health Administration (OSHA), the Department of Labor agency tasked with regulating workplace safety.

The employer mandate, originally scheduled to go into effect Jan. 4, has been stayed amid legal challenges launched by several Republican governors. Federal judges and appeals court had ruled on either of the issue, which centered on whether Congress had delegated the authority for such a sweeping rule to the executive branch.

“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,” the unsigned majority bloc of justices wrote in denying the OSHA regulation.

The ruling by the Supreme Court does not affect private companies that came to such policies on their own, such as Citi, which is enforcing a vaccinate-or-terminate policy this month. It simply bars the federal government from enforcing the rule on unwilling employers.

Meanwhile, the justices upheld the U.S. Centers for Medicare & Medicaid Services regulation that all health care workers at facilities that receive its funding must be vaccinated, impacting an estimated 17 million workers at 76,000 facilities.

“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,” the majority bloc, unsigned again, wrote of the CMS regulation.

Since Biden first announced the aggressive policies two months ago, many Delaware companies started to roll out their own policies in concert. ChristianaCare was ahead of the curve and announced it would terminate those who did not comply and received an exemption, and 150 employees were terminated or separated by late September. Nemours Children’s Health and Trinity Health also made heavy pushes toward vaccination. 

Bayhealth, Beebe Healthcare and TidalHealth paused their plans to require vaccinations of staff late last year as legal challenges to the regulation worked through the system. Now all three will be required to comply with the mandate or face the untenable prospect of no longer gaining Medicare and Medicaid funding.

With health care workers already exhausted from working through nearly two years of the pandemic and the industry workforce falling amid burnout and retirements, it’s unclear how many workers may chose to not get vaccinated at the Kent and Sussex county health care systems.

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