The Supreme Court gutted the Biden administration’s pandemic-response strategy Thursday in a split decision that puts a vaccine-or-test mandate for large businesses on ice.

While no judge signed the decision granting a stay of the mandate from the Occupational Safety and Health Administration, Justices Clarence Thomas and Samuel Alito joined a concurring opinion from Justice Neil Gorsuch. Justice Stephen Breyer, Elena Kagan and Sonia Sotomayor took the rare step meanwhile of co-signing a dissent that labels Covid-19 “a menace in work settings.”

They contend that OSHA did what Congress asked it to do. “In our view, the Court’s order seriously misapplies the applicable legal standards,” the dissent states. “And in so doing, it stymies the Federal Government’s ability to counter the unparalleled threat that COVID–19 poses to our Nation’s workers. Acting outside of its competence and without legal basis, the Court displaces the judgments of the Government officials given the responsibility to respond to workplace health emergencies.”

The liberal justices said OSHA’s mandate works to prevent workplace harm, and that the mandate is necessary to tackle the dangers during a pandemic where Covid-19 poses a grave danger to the public writ large.

Skewering the majority’s focus on whether OSHA has power to address a disease outside the workplace, Breyer, Kagan and Sotomayor emphasized that there is no dispute that Covid-19 poses a grave danger and that a vaccination policy is necessary to safeguard against it. They argue that nothing in OSHA’s charge from Congress supports the majority decision.

“That is what the majority today does — impose a limit found no place in the governing statute,” the liberal justices wrote.

As the majority saw it, however, OSHA lacks the authority to impose the vaccine-or-test mandate. The ruling holds up the mandate as a “significant encroachment into the lives — and health — of a vast number of employees.”

“Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly,” the ruling states. “Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”

Expressing his disappointment with the ruling for large businesses Thursday, President Joe Biden called on business leaders to enforce their own vaccine mandates.

“The Court has ruled that my administration cannot use the authority granted to it by Congress to require this measure, but that does not stop me from using my voice as President to advocate for employers to do the right thing to protect Americans’ health and economy,” Biden wrote. “I call on business leaders to immediately join those who have already stepped up — including one third of Fortune 100 companies — and institute vaccination requirements to protect their workers, customers, and communities.”

For some experts, however, the prospect of different policies across the nation is an alarming one.

“As with so many employment-related Covid-19 laws, this would create a patchwork of differing and potentially conflicting rules across the states that will be difficult and burdensome for multistate employers to track and comply with,” Michelle Strowhiro, a partner at McDermott Will & Emery, said via email ahead of Thursday’s decision.



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