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!

Rich Erwin

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