Supreme Court of the USA, Washington D.C.

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As employers wait to see whether the Supreme Court will issue stays against federal COVID-19 vaccine mandates from the Occupational Safety and Health Administration and Centers for Medicare & Medicaid Services, some state governments are taking matters into their own hands.

The High Court on Friday heard oral arguments challenging and supporting OSHA’s mandate for employers with 100 or more workers and CMS’ mandate for healthcare workers at providers that participate in the Medicare and Medicaid programs. Court watchers said that the justices seemed more open to the requirement for healthcare workers than to the requirement for a broader group of individuals.

Unless a stay of the OSHA rule is announced today, the agency has said it will begin implementing its rule today, although OSHA said it would not cite employers for not complying with the standard’s testing requirements before Feb. 9 “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”

But some state governments are not waiting for the Supreme Court to act.

On Friday in Illinois, for instance, the state Department of Labor filed new rules to officially adopt the Biden administration’s vaccine mandate for employers with 100 or more employees. Companies will have until Feb. 24 to comply with various aspects of the rules and beginning March 25 must ensure that employees who are not fully vaccinated are tested for COVID-19 at least weekly.

OSHA’s emergency temporary standard has its detractors at the state level, however.

In Iowa on Friday, Gov. Kim Reynolds (R) said that the state’s labor commissioner had submitted a notice that Iowa will not adopt or enforce the Biden administration’s vaccination-and-testing rule. The rule, she said, would cause businesses and employees to “suffer” and would exacerbate workforce shortages.

Also on Friday, Virginia Gov.-elect Glenn Youngkin (R) and Attorney General-elect Jason Miyares (R) said they plan to challenge the OSHA and CMS COVID-19 vaccine mandates, as well as one for staff, some contractors and volunteers involved with the Head Start early childhood learning program, after they take office Jan. 15. 

Arkansas Gov. Asa Hutchinson (R) on Sunday’s “State of the Union” program on CNN described the rule as “oppressive” and said employers in his state should not comply with it until the Supreme Court rules. Hutchinson told host Jake Tapper that he supports private-sector businesses that want to implement their own mandates, however

As of Dec. 22, according to LeadingAge, 25 states had vaccination mandates, including 16 with language specific to healthcare settings or long-term care, whereas 13 states had vaccine mandate bans at that time.

Friday’s oral arguments

Friday at the Supreme Court, business groups led by the National Federation of Independent Business and a group of 27 states led by Ohio argued that OSHA’s “economy-wide, one-size-fits-all” order covering 84 million American workers was federal overreach. Their attorneys argued that the rule would upend the economy, cost billions of dollars, lead to mass employee resignations and violate state sovereignty in developing vaccine policies.

The COVID-19 vaccination-and testing standard requires employers with 100 or more workers to ensure that employees are vaccinated or undergo regular testing and wear masks in the workplace. The masking requirement would go into effect as early as today, with testing requirements beginning Feb. 9.

The OSHA rule would affect 1.8 million workplaces —  about two-thirds of the private workforce in the country, according to the government.

U.S. Solicitor General Elizabeth Prelogar argued that the coronavirus pandemic is the deadliest pandemic in American history and poses a “particularly acute workplace danger.” Implementing a standard to protect workers “lies in the heartland of OSHAs’ regulatory authority,” she added.

“Exposure to COVID on the job is the biggest threat to workers in OSHA’s history,” Prelogar said. “We reject the argument that the agency is powerless to address that grave danger.” 

Scott Keller, representing states and businesses in the case against the OSHA rule, is seeking a stay to prevent today’s enforcement of the standard. The lack of available COVID-19 tests, as well as the cost and administrative requirements in implementing vaccine mandates, is federal overreach, he said. 

Keller argued that OSHA never before has mandated vaccination or widespread testing across all industries and that it is wrong to treat all industries, workers and workplaces as the same. The sheer size, scope and overall effect of the standard would “cause a massive economic shift in the country” and a “permanent worker displacement that will ripple through the national economy,” he said.

Representing the states challenging the federal rule, Ohio Solicitor General Benjamin Flowers — who delivered his arguments remotely after testing positive for COVID-19 as part of the Supreme Court’s own test mandate for attorneys — argued that regardless of the nature of workplaces, state and local officials are better positioned to accommodate employee risk factors and workplace conditions. The rule, he said, does not truly address a regular workplace danger, but rather addresses a danger everyone faces “as a matter of waking up in the morning.” 

Justice Sonia Stotomayor, who stated that the OSHA rule is not a vaccine mandate, countered that “catching COVID-19 keeps people out of the workplace for extraordinary periods of time.” 

Justice Stephen Breyer said he found it “unbelievable” to request a stay on the vaccinate-or-test rule in the public interest in the context of 750,000 new coronavirus cases being reported daily.

Justice Elena Kagan questioned why it wouldn’t be necessary to “abate a grave risk” as is evident in a pandemic in which almost 1 million people have died. Kagan called the pandemic the “greatest public health danger this country has faced in the last century,” and said that this is an “extraordinary circumstance.”

“This is the policy that is most geared to stopping all of this,” she said. “There is nothing else that will perform that function better than incentivizing people strongly to vaccinate themselves.”

Justices Neil Gorsuch and Brett Kavanaugh questioned whether executive agencies have the power to regulate COVID-19 as a grave danger to workers or whether Congress would need to explicitly grant that power through legislation. 

Justices also heard oral arguments regarding the CMS vaccine mandate, which would affect some 17 million healthcare workers at more than 77,000 providers, including nursing homes but not assisted living.

History of OSHA rule

The OSHA vaccination-and-testing rule, announced Nov. 4, was temporarily halted later that month by the 5th U.S. Circuit Court of Appeals. In December, the case was reassigned to the 6th Circuit Court of Appeals, which lifted a hold on the rule.

The Labor Department, however, said it would delay enforcement of the mandate “to account for any uncertainty created by the stay” by the 5th Circuit Court. At the time, OSHA indicated that it would not cite employers for not complying with any requirements of the standard before Jan. 10 and would not cite employers for not complying with the standard’s testing requirements before Feb. 9 “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”