Supreme Court Appears Poised To Block Biden's Vaccine And Testing Rules For Businesses

The Supreme Court's conservative majority on Friday appeared ready to reject one of President Joe Biden's most aggressive attempts so far to combat the spread of Covid-19 -- a vaccine or testing requirement aimed at large businesses.

But in a separate challenge, some justices seemed more open to a vaccine mandate aimed at certain health care workers.

The court heard arguments for almost four hours as the number of infections is soaring, and 40 million adults in the US are still declining to get vaccinated. The three liberal justices on the court expressed clear approval for the administration's rules in both areas.

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Large employers

The rule from the Occupational Safety and Health Administration -- an agency that falls under the US Labor Department and is charged with assuring a safe workplace -- requires employers with 100 or more employees to ensure that their employees are fully vaccinated or undergo regular testing and wear a face covering at work. There are exceptions for those with religious objections.

The agency said that it had the authority to act under an emergency temporary standard meant to protect employees if they are exposed to a "grave danger."

The Biden administration defends the regulation and argues that the nation is facing a pandemic "that is sickening and killing thousands of workers around the country" and that any delay in implementing the requirement to get a vaccine or submit to regular testing "will result in unnecessary illness, hospitalizations and death."

Solicitor General Elizabeth Prelogar told the justices in court papers that if the court were to rule in favor of the challengers it would leave OSHA "powerless" to respond to the "grave workplace dangers posed by existing viruses and other infectious diseases, as well as future pandemics."

At the very least, she argued, if the court says that the employers can't require the employees to get the vaccine, it should leave in place an alternate requirement for masking and frequent testing.

But a lawyer for the National Federation of Independent Business, representing a coalition of business groups, told the court that OSHA did not have the authority to put in place a vaccine and testing regime that would cover two-thirds of all private-sector workers. The lawyer, Scott A. Keller, stressed that the OSHA requirement would impose substantial compliance costs on businesses that will be faced with incurring the cost of testing for millions of employees who refuse to vaccinate.

Keller argues that the rule will trigger severe staffing shortages when workers who object to the requirements quit. "The resulting labor upheaval will devastate already fragile supply chains and labor markets at the peak holiday season," he wrote in court papers.

Keller told the justices that if the court were to rule in favor of the government in the dispute it would "drastically" expand the agency's authority over industries that cover a significant portion of the economy. "Congress did not give OSHA power to impose emergency mandates and monitoring 84 million employees for a known, omnipresent danger that presents no unique hazard to the identified workplaces," he said.

A divided panel of judges on the 6th US Circuit Court of Appeals ruled in favor of the administration, holding that as Covid -19 has "continued to spread, mutate, kill, and block the safe return of American workers to their jobs" OSHA "can and must be able to respond to dangers as they evolve."

But a well-respected conservative judge on the same court dissented during an earlier phase of the case. Judge Jeffrey Sutton conceded the "utility of vaccines," saying, "It is the rare federal judge who has not gotten the message." He maintained, however, that no matter the policy benefits of a well-intended regulation, "a court may not enforce it if the agency's reach exceeds a statute's grasp."

OSHA has said it will not issue citations for noncompliance to employers before January 10.

Read the full article from CNN here.