NPI's Cascadia Advocate

Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate is the Northwest Progressive Institute's uplifting perspective on world, national, and local politics.

Thursday, January 13th, 2022

COVID-19 Update: Supreme Court blocks vaccine/test mandate for large employers

It’s time for anoth­er install­ment of of our spe­cial series COVID-19 Update, bring­ing you the lat­est devel­op­ments on the nov­el coro­n­avirus out­break that pub­lic health author­i­ties here and across the coun­try are work­ing to mitigate.

On Thurs­day, Jan­u­ary 13th, with new cas­es of COVID-19 ris­ing at an almost asymp­tot­ic rate cour­tesy of the omi­cron vari­ant, the Supreme Court of the Unit­ed States blocked the Biden-Har­ris admin­is­tra­tion from enforc­ing a vac­cine-or-test­ing man­date for com­pa­nies with more than one hun­dred employees.

The deci­sion, which was crit­i­cized by the admin­is­tra­tion, was then fol­lowed by a sec­ond deci­sion allow­ing a more mod­est man­date requir­ing health­care work­ers at facil­i­ties receiv­ing fed­er­al mon­ey to be vaccinated.

These two deci­sions hinge large­ly around which fed­er­al enti­ty has what lev­el of author­i­ty. OSHA (Occu­pa­tion­al Safe­ty and Health Admin­is­tra­tion) was deemed by the right wing major­i­ty on the Court as act­ing out­side its authority:

Admin­is­tra­tive agen­cies are crea­tures of statute. They accord­ing­ly pos­sess only the author­i­ty that Con­gress has pro­vid­ed. The Sec­re­tary has ordered 84 mil­lion Americans to either obtain a COVID–19 vac­cine or under­go week­ly med­ical test­ing at their own expense. This is no “every­day exer­cise of fed­er­al pow­er.” … It is instead a sig­nif­i­cant encroach­ment into the lives — and health—of a vast num­ber of employ­ees … There can be lit­tle doubt that OSHA’s man­date qual­i­fies as an exer­cise of such author­i­ty.

The ques­tion, then, is whether the Act plain­ly autho­rizes the Secretary’s man­date. It does not. The Act empow­ers the Sec­re­tary to set work­place safe­ty stan­dards, not broad pub­lic health mea­sures...Con­firm­ing the point, the Act’s pro­vi­sions typ­i­cal­ly speak to haz­ards that employ­ees face at work. 

And no pro­vi­sion of the Act address­es pub­lic health more gen­er­al­ly, which falls out­side of OSHA’s sphere of exper­tise.

… while the Depart­ment of Health and Human Ser­vices is with­in its authority:

The Medicare pro­gram pro­vides health insur­ance to individ­u­als 65 and old­er, as well as those with spec­i­fied dis­abilities. The Med­ic­aid pro­gram does the same for those with low incomes.

Both Medicare and Med­ic­aid are admin­istered by the Sec­re­tary of Health and Human Ser­vices, who has gen­er­al statu­to­ry author­i­ty to pro­mul­gate reg­u­la­tions “as may be nec­es­sary to the effi­cient admin­is­tra­tion of the func­tions with which [he] is charged.”

One such function—perhaps the most basic, giv­en the Department’s core mis­sion — is to ensure that the health­care providers who care for Medicare and Med­ic­aid patients protect their patients’ health and safe­ty. Such providers include hos­pi­tals, nurs­ing homes, ambu­la­to­ry sur­gi­cal centers, hos­pices, reha­bil­i­ta­tion facil­i­ties, and more.

To that end, Con­gress autho­rized the Sec­re­tary to pro­mul­gate, as a con­di­tion of a facility’s par­tic­i­pa­tion in the pro­grams, such “require­ments as [he] finds nec­es­sary in the inter­est of the health and safe­ty of indi­vid­u­als who are fur­nished ser­vices in the institution.”

Munic­i­pal, coun­ty and state man­dates are not affect­ed by either deci­sion and any local man­dates in place may remain. Cit­i­group intends to fire all work­ers who aren’t vac­ci­nat­ed by the end of Jan­u­ary 2022, while Star­bucks has declared that all employ­ees must be vac­ci­nat­ed or under­go­ing reg­u­lar test­ing by Feb­ru­ary 9th.

Oth­er com­pa­nies, such as Boe­ing, Gen­er­al Elec­tric, Union Pacif­ic and BNSF Rail­way had sus­pend­ed their vac­cine or test man­dates as a result of the stay in Novem­ber of 2021 by the U.S. Court of Appeals for the Fifth Cir­cuit in Louisiana against the Biden-Har­ris admin­is­tra­tion’s man­date for large employ­ers, and their future actions are unknown.

Boe­ing said that about nine­ty-two per­cent of its more than 110,000 U.S. employ­ees were ful­ly vac­ci­nat­ed or had received exemp­tions from the man­date, but over a third of its employ­ees reside in Alaba­ma, Ari­zona, Mis­souri, Okla­homa, South Car­oli­na and Texas, which have lax to nonex­is­tent reg­u­la­tions in place — this prob­a­bly had an effect on their deci­sion to suspend.

Wal­mart, Ama­zon and JPMor­gan Chase, three of the largest employ­ers in the Unit­ed States, have yet to issue any broad require­ments for their workers.

One like­ly result of the first deci­sion by the Supreme Court will be sig­nif­i­cant delays in employ­ees whose phys­i­cal pres­ence is not con­sid­ered essen­tial return­ing to offices. Many com­pa­nies have been reduc­ing their office space require­ments since mid-2021, and Court’s deci­sion to strike down the man­date on large employ­ers is like­ly to result is fur­ther reductions.

No final deci­sion by the Supreme Court regard­ing a vac­cine or test­ing man­date for Fed­er­al con­trac­tors has yet been made, though the Unit­ed States Postal Ser­vice will both not meet the vac­cine or test­ing require­ment and not be pro­vid­ed a request­ed 120-day exten­sion from meet­ing the OSHA requirement.

Washington

On Thurs­day, Jan­u­ary 13th, Gov­er­nor Jay Inslee took six steps in response to ris­ing cas­es of COVID-19 due to the omi­cron variant.

First, one hun­dred non-clin­i­cal per­son­nel among the Wash­ing­ton State Nation­al Guard will be deployed large­ly to assist emer­gency rooms at eight facil­i­ties across the state to alle­vi­ate crowd­ing of patients at these facil­i­ties and to pro­vide COVID-19 test­ing teams where most useful.

Sec­ond, all hos­pi­tals with­in Wash­ing­ton state will be required to pause all non-urgent pro­ce­dures, again in order to alle­vi­ate crowding.

Third, take var­i­ous actions to increase staffing with­in and facil­i­tate tran­si­tion­ing  qual­i­fied patients from hos­pi­tals and into long-term care facilities.

Fourth, the state will take steps to make per­son­al pro­tec­tive equip­ment (PPE) for hos­pi­tals and relat­ed facil­i­ties both manda­to­ry and available.

Fifth, the state will be attempt­ing to entice retired health care work­ers to return to work in non-front­line roles to ensure enough per­son­nel are available.

Sixth, the state will invest $30 mil­lion to assist health­care work­ers in com­plet­ing  their edu­ca­tion­al and clin­i­cal require­ments and pro­fes­sion­al development.

The hard, cold numbers (plus vaccinations)

Wash­ing­ton has had 1,029,495 cas­es and 10,220 attrib­ut­able deaths.

The state has the forty-sev­enth worst infec­tion rate among the fifty states, the Dis­trict of Colum­bia and Puer­to Rico per mil­lion in population.

The state has the forty-sixth worst death rate among the fifty states, the Dis­trict of Colum­bia and Puer­to Rico per mil­lion in population.

10,480,434 tests have been recorded.

  • Dos­es of vac­cine dis­trib­uted to the state: 13,915,795
  • Dos­es admin­is­tered: 11,268,717 (80.98%)

Ore­gon has had 504,731 cas­es and 5,870 attrib­ut­able deaths.

The state has the four­ty-ninth worst infec­tion rate among the fifty states, the Dis­trict of Colum­bia and Puer­to Rico per mil­lion in population.

The state has the forty-fifth worst death rate among the fifty states, the Dis­trict of Colum­bia and Puer­to Rico per mil­lion in population.

9,155,048 tests have been recorded.

  • Dos­es of vac­cine dis­trib­uted to the state: 7,953,005
  • Dos­es admin­is­tered: 6,193,364 (77.87%)

Ida­ho has had 336,424 cas­es and 4,263 attrib­ut­able deaths.

The state has the thir­ty-fifth worst infec­tion rate among the fifty states, the Dis­trict of Colum­bia and Puer­to Rico per mil­lion in population.

The state has the thir­ty-fourth worst death rate among the fifty states, the Dis­trict of Colum­bia and Puer­to Rico per mil­lion in population.

2,526,106 tests have been recorded.

  • Dos­es of vac­cine dis­trib­uted to the state: 2,741,310
  • Dos­es admin­is­tered: 1,881,077 (68.62%)

British Colum­bia has had 291,246 cas­es and 2,462 attrib­ut­able deaths.

5,272,664 tests have been recorded.

British Colum­bia has the eighth worst infec­tion rate and the sixth worst death rate among the thir­teen Cana­di­an provinces and ter­ri­to­ries per hun­dred thou­sand pop­u­la­tion. (If it were an Amer­i­can state, it would be fifty-third and fifty-third, respec­tive­ly, out of fifty-three.)

  • Dos­es of vac­cine dis­trib­uted to the province: 10,735,884
  • Dos­es admin­is­tered: 9,897,611 (92.19%)

That does it for this install­ment of COVID-19 Update. Stay safe and well!

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