Justices agree to hear emergency case over Biden vaccine rules

WASHINGTON — The U.S. Supreme Court will hold a special hearing next month to consider challenges to the Biden administration's pandemic efforts affecting millions of workers — a nationwide vaccine-or-testing requirement for large employers, and a separate mandate for health care workers.

Both policies have been at least partially blocked from going into effect by lower courts after challenges from Republican-led states, and from business and religious coalitions. The large employer mandate was to go into affect Jan. 4, but now the Biden administration has moved that to Feb. 9.

But both now will be considered Jan. 7, the Friday before the court was to resume its normal schedule of oral arguments. It is highly unusual for the justices to schedule such hearings on emergency requests.

One of the cases involves a rule from the Occupational Safety and Health Administration that requires employers with 100 or more workers to have staff vaccinated or tested regularly on a regular basis. The other is from the Centers for Medicare & Medicaid Services, and it requires vaccination for workers at facilities that receive federal funds tied to those programs.

The White House said late Wednesday night it is "confident in the legal authority for both policies and (the Department of Justice) will vigorously defend both at the Supreme Court."

"Especially as the U.S. faces the highly transmissible omicron variant, it is critical to protect workers with vaccination requirements and testing protocols that are urgently needed," White House press secretary Jen Psaki said in a statement.

More than half the states and coalitions of business and religious groups are asking the justices for emergency action to block the OSHA rules, which would cover an estimated 80 million workers.

Iowa is among the states suing, saying the ruling would apply to over 2,000 business in the state.

“I believe the vaccine is the best defense against COVID-19, but I also firmly believe in Iowans’ right to make health care decisions based on what’s best for themselves and their families," a statement from Republican Gov. Kim Reynolds' office said at the time. "I remain committed to protecting those freedoms. President Biden should do the same."

The Biden administration asked the court to intervene to lift lower-court decisions that have blocked a vaccine mandate for what is estimated to be about 17 million health care workers.

The Supreme Court had called for additional briefing in those cases by Dec. 30. Under its normal procedures, the justices would then make a decision about whether to block or allow the policies while the litigation over them continued.

The court's decision to hold hearings on the vaccine policies comes at a time of great tension and uncertainty in the pandemic, with the omicron variant contributing to a sharp rise in infections and causing state and local governments to scramble.

A divided panel of the U.S. Court of Appeals for the 6th Circuit, which last week said the OSHA requirement could go into effect, said the federal government was dealing with an emergency.

The directive, wrote Judge Jane Stranch, "is an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs."

The Supreme Court generally has been supportive of decisions by local governments and universities to require vaccination. But the justices also have been skeptical of federal agencies' power to mandate pandemic-related responses. For instance, it ended a moratorium on evictions imposed by the Centers for Disease Control and Prevention, saying it was beyond the agency's authority.

The justices's own workplace has been closed to the public since March 2020. The court, all of its members vaccinated, began hearing cases in person this fall, but with limited attendance. Lawyers arguing cases and credentialed reporters watching the proceedings are not required to be vaccinated but must have received negative test results.

The 6th Circuit's decision on the OSHA regulations was immediately brought to the high court. More than a dozen challenges have been recorded this week.

The Labor Department rules say employers with more than 100 workers must require them to be vaccinated or face weekly testing and mandatory masking. There are exceptions for employees who do not work on-site or with others, and for other reasons.

In the challenge brought by 27 states, Ohio Attorney General Dave Yost calls the OSHA requirement "a historically unprecedented administrative command."

"This case does not present the question whether vaccines or vaccine mandates are wise or desirable," he wrote. "Instead, it presents the narrow questions whether OSHA had authority to issue the mandate, and whether it lawfully exercised whatever authority it had."

Stranch said Congress intended for OSHA to be able to impose emergency temporary standards in times of great peril.

"Vaccination and medical examinations are both tools that OSHA has historically employed to contain illness in the workplace," wrote Stranch, a nominee of President Barack Obama.

Dissenting from the decision was Judge Joan Larsen, a nominee of President Donald Trump.

"The virus that causes COVID-19 is not, of course, uniquely a workplace condition. Its potency lies in the fact that it exists everywhere an infected person may be — home, school, or grocery store, to name a few," Larsen wrote. "So how can OSHA regulate an employee's exposure to it?"