SCOTUS rejected attempt to bypass Congress with an emergency regulation.
(Bryan Olin Dozier/ZUMAPRESS/Newscom)
The Biden administration today withdrew its mandate requiring workers from large companies to get vaccinated for COVID-19 or regularly tested, following a Supreme Court loss earlier this month.
Because of the court’s ruling in National Federation of Independent Businesses vs. OSHA, an emergency temporary standard (ETS) the administration put into place can no longer be enforced.
The vaccination mandate has caused controversy in part because an ETS can circumvent the traditional democratic rulemaking process and even act as a proposal for more permanent standards, bypassing Congress’ lawmaking powers.
Fearing this temporary regulation may become permanent, many private businesses, Republican states, and religious groups threw dozens of lawsuits at the Occupational Safety and Health Administration (OSHA). Now, OSHA will ask the U.S. Sixth Circuit Court of Appeals to dismiss cases related to their mandate.
The mandate would have applied to over 80 million employees.
OSHA still says it will continue to evaluate the vaccine rule as it monitors the course of the pandemic, but this is amounts to an empty threat. The Supreme Court’s ruling was about the breadth of the mandate and whether OSHA had such power, not how the rule was implemented. Even following the normal rule-making process, a new vaccine and testing mandate would likely not make it past the courts.
From the time of OSHA’s inception, the agency never required employers to make vaccination mandatory, a safety measure that would extend beyond the workplace. Moreover, OSHA typically requires employers to pay for workplace safety measures, not employees. The vaccination mandate turned this concept on its head, with workers now bearing the burden of either vaccines or testing—something the court said is not within OSHA’s power.
Justice Neil Gorsuch stated in his concurring opinion that the court’s decision was about who has the power to respond to the pandemic, not how it should be handled.
With the Supreme Court’s decision and the mandate withdrawal, the Labor Department now states it “continues to strongly encourage the vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.”