WASHINGTON – The Supreme Court said Wednesday evening it would hold a special hearing next month to assess the legality of two initiatives at the heart of the Biden administration’s efforts to tackle the coronavirus in the workplace.
The court said it would act with exceptional speed on the two measures, a vaccine or testing mandate for large employers and a vaccination requirement for some healthcare workers, making the case for Friday, January 7. The judges were not due to return to the bench until the following Monday.
Both sets of cases were part of what critics call the shadow court case, in which the court rules on emergency requests, sometimes on matters of great importance, without a briefing or full argument. The court’s decision to hear arguments on the claims may have been a response to growing criticism of the practice.
The more drastic of the two measures, targeting companies with 100 or more employees, would affect more than 84 million workers and is at the heart of the administration’s efforts to fight the pandemic. The administration estimated that the measure would vaccinate 22 million people and avoid 250,000 hospitalizations.
The second measure requires health care workers in hospitals that receive federal money to be vaccinated against the virus. It will “save hundreds if not thousands of lives every month,” the administration wrote in an emergency request.
The Supreme Court has repeatedly upheld state vaccine mandates in various contexts against constitutional challenges. But the new cases are different, because they primarily pose the question of whether Congress authorized the executive branch to institute the requirements.
The answer will depend mainly on the language of the relevant laws, but there is reason to believe that the conservative majority of six judges on the court will be skeptical of the executive branch’s general claims.
The last time the Supreme Court reviewed a Biden administration program to fight the pandemic – a moratorium on evictions – judges shut it down.
“Our system does not allow agencies to act illegally even in pursuit of desirable goals,” the court said in an unsigned notice in August about the dissent of the three liberal judges.
In a statement released Wednesday evening, the Biden administration pledged to vigorously defend the initiatives.
“Especially since the United States is faced with the highly transmissible variant of Omicron, it is essential to protect workers with vaccination requirements and testing protocols that are urgently needed,” said Jen Psaki , the White House press secretary, adding: “We have confidence in the legal authority. for both policies.
The vaccination or testing requirement for large employers was issued in November by the Department of Labor’s Occupational Safety and Health Administration, or OSHA.
Employers are allowed to give their workers the option of getting tested every week instead of getting vaccinated, although they are not required to pay for the test. The rule makes an exception for employees who do not come into close contact with other people at their work, such as those who work from home or exclusively outside.
Under a 1970 statute, OSHA has the power to make emergency rules for workplace safety, provided it can demonstrate that workers are exposed to serious danger and that the rule is necessary.
States, businesses and religious groups have challenged the measure in courts of appeals across the country, and a unanimous panel of three judges from the United States Court of Appeals for the Fifth Circuit, in New Orleans, had ruled in favor of some of the challengers, blocking the measure.
Last week, after the challenges were consolidated in the U.S. Sixth Circuit Court of Appeals in Cincinnati, a divided three-judge panel restored the measure.
“The record establishes that Covid-19 continued to spread, mutate, kill and block the safe return of American workers to their jobs,” Majority Judge Jane B. Stranch wrote. “To protect workers, OSHA can and should be able to respond to hazards as they evolve. “
Dissenting, Justice Joan L. Larsen wrote that the administration “likely lacks the authority of Congress” to impose the vaccine or test requirement.
“The mandate is directly aimed at protecting the unvaccinated from their own choices,” she wrote. “Vaccines are available free of charge and unvaccinated people can choose to protect themselves at any time. “
Almost immediately, more than a dozen challengers asked the Supreme Court to block the measure.
The second set of cases the court has agreed to hear relate to the requirement that healthcare workers in hospitals receiving federal money be vaccinated against the coronavirus.
Federal judges in Missouri and Louisiana blocked the requirement, which provides exemptions for people with medical or religious objections, in rulings that apply in about half of the states.
In the 10-state Missouri case, Judge Matthew T. Schelp ruled that the administration exceeded its statutory authority in issuing the requirement and did not follow the proper procedures to do so. A three-judge split panel of the U.S. Court of Appeals for the Eighth Circuit in St. Louis refused to stay the decision while an appeal progressed.
In the Louisiana case, brought by 14 states, Judge Terry A. Doughty blocked the requirement for similar reasons. Calling it a “close appeal,” a panel of three judges from the Fifth Circuit declined to issue a suspension while the administration appealed.
The requirement, Solicitor General Elizabeth B. Prelogar told the court, was underpinned by “both science and common sense.”
“Require healthcare workers at facilities participating in Medicare and Medicaid to be vaccinated,” she wrote, “protects the health and safety of patients in these facilities by reducing their risk of contracting the virus that causes Covid- 19. “
The Supreme Court had previously requested responses to emergency requests in both sets of cases by December 30, suggesting it would issue orders soon after without hearing arguments. His decision to do so followed a roughly similar pattern in challenges to an abortion law in Texas. Here too, the judges scheduled the pleadings according to an exceptionally accelerated schedule.