Supreme Court Blocks Biden Workplace Vaccine Mandate, Conservative Majority Calls it ‘Significant Encroachment’

The U.S. Supreme Court heard arguments Friday over a Biden administration COVID-19 vaccine-or-test mandate that affects about a quarter of the nation’s school districts. (Samuel Corum/Getty Images)

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Updated Jan. 13

Calling it a “significant encroachment,” the Supreme Court on Thursday blocked a Biden administration workplace vaccine-or-test mandate that would have impacted about a quarter of the nation’s school districts and potentially contributed to further staff shortages.

“Permitting [the Occupational Safety and Health Administration] to regulate the hazards of daily life — simply because most Americans have jobs and face those same risks while on the clock — would significantly expand OSHA’s regulatory authority without clear congressional authorization,” the opinion said.

The court’s three left-leaning justices, Stephen Breyer, Sonia Sotomayor and Elena Kagan, dissented, arguing that the decision “stymies the federal government’s ability to counter the unparalleled threat that COVID–19 poses to our nation’s workers.”

As schools struggle to handle COVID-19 outbreaks amid staff shortages, the U.S. Supreme Court Friday heard a lawsuit over an employee vaccine mandate that some experts suggest could stretch districts even thinner.

In November, President Joe Biden mandated that employees in organizations with at least 100 workers be vaccinated or wear a mask and test weekly. The requirement applies to about a quarter of the nation’s public school teachers and staff members, after factoring in the several states that have already imposed their own vaccine requirements for district employees.

The plaintiffs, 27 states and the National Federation of Independent Businesses, sued the U.S. Department of Labor and the Occupational Safety and Health Administration, arguing that the mandate — set to go into effect Monday — would create a “labor upheaval” and that many employees will quit rather than comply. The plaintiffs asked the court to block the mandate from being implemented, and a ruling on that could come as early as this weekend.

“This is going to cause a massive economic shift in this country,” said Scott Keller, representing the businesses. He and Ohio Solicitor General Ben Flowers argued that states and Congress — not OSHA — have the authority over public health regulations and that COVID-19 transmission is a risk everywhere, not just in the workplace.

Solicitor General Elizabeth Prelogar, speaking for the Biden administration, stressed that “grave danger exists” when people gather indoors together, which they are more likely to do at work.

The hearing took place as other challenges to vaccine mandates — for both educators and students — move through the legal system. The San Diego Union School District’s vaccine mandate is facing two challenges, one of which also awaits a response from the Supreme Court. And a federal judge in Louisiana last week blocked the Biden administration’s requirement that all Head Start staff be vaccinated by the end of January. 

Even the judge in that case expects the administration to appeal.

“This issue will certainly be decided by a higher court than this one,” Judge Terry Doughty, of the Western District of Louisiana, wrote in his ruling. A Trump appointee, he argued that the Biden administration has overstepped its authority and the mandate could make it difficult to keep classrooms fully staffed.

“If the executive branch is allowed to usurp the power of the legislative branch to make laws, then this country is no longer a democracy — it is a monarchy,” he wrote.

‘Thousands of people dying’

In Friday’s oral arguments on the OSHA case, members of the Supreme Court’s conservative majority also questioned the the legality of the agency’s mandate.

“This is something that the federal government has never done before,” said Chief Justice John Roberts.

But the more liberal justices focused on record-level case and hospitalization rates.

“By this point, we know that the best way to prevent spread is for people to get vaccinated,” said Justice Elena Kagan. “We are still confronting thousands of people dying every time we look around.”
On Wednesday, there were more than 700,000 new cases in the U.S. and more than 1,500 deaths, according to the Centers for Disease Control and Prevention The death rate, however, has declined since the Delta surge in September.

According to Nat Malkus, an education policy expert at the conservative American Enterprise Institute, the mandate would directly apply to districts in 26 states that have their own OSHA plans. But even in those states that are exempt, it could “change the calculus for districts” and make them more likely to require vaccines or regular testing if most other employers in their communities are already enforcing the mandate. In the 24 states directly under OSHA authority, state and local employers are not included.

He noted that if the court opens the door to OSHA having broad authority in this case, it will be “harder to close it in the future,” and would strengthen the government’s argument in the Head Start case. 

While some children turn 5 while in Head Start, most in the federal preschool program for children in poverty, are still too young to be vaccinated. Children are less likely to become seriously ill from COVID-19. But with Omicron leading to higher positivity rates and recent increases in pediatric COVID-related hospitalizations, medical experts have stressed the importance of surrounding young children with family members and caregivers who are vaccinated.

The National Head Start Association, which represents Head Start families and programs, is calling for a compromise between the administration’s hard-line position and the 24 states that sued over the mandate. The rule also requires children ages 2 and up to wear masks.

“Face masks and vaccinations play a critical role in reducing the spread of COVID-19 in early care and educational settings. But the rule wants it all one way and the lawsuit wants it all the other way,” Yasmina Vinci, executive director of the association, said in a statement. “Head Start leaders are seeking the middle ground, where local programs have the flexibility to work within local guidelines to keep classrooms open and ensure children don’t lose access to crucial services because of a mandate that is impossible to operationalize.”

‘The uphill effort’

But district leaders are concerned about the immediate impact of vaccine mandates on the classroom. 

“It will make shortages worse and exacerbate the uphill effort to get and keep schools open and kids in schools,” Noelle Ellerson Ng, associate executive director for advocacy and governance at AASA, the School Superintendents Association, said about the OSHA rule.

As they monitor court rulings regarding vaccine mandates for employees, school districts are also watching decisions regarding students.  

The Supreme Court is expected to decide before Jan. 24 whether to hear the case of a pro-life student from Scripps Ranch High School in the San Diego district who objects to human cell lines being used in the testing and creation of the COVID-19 vaccines. Cell lines, developed in laboratories and commonly used to manufacture vaccines, come from fetuses aborted decades ago. 

The mandate applies to students 16 and up. Students who don’t comply would be enrolled in remote learning.

“The irony about the mandate is that teachers are allowed to get religious exemptions, but students, who are at far lower risk [from COVID-19], are not,” said attorney Paul Jonna, who represents the plaintiffs.

Anti-vaccine protesters protested outside the San Diego Unified School District office in September when the school board voted to enact a vaccine mandate. (Sandy Huffaker/Getty Images)

In a separate San Diego case, the district plans to appeal a superior court judge’s decision blocking the mandate. Let Them Choose, an advocacy organization, argues that only the state legislature or public health department — not districts — have the authority to mandate childhood vaccinations. The law also allows parents and students to opt out for personal beliefs. 

Two advocacy organizations made the same argument over the Los Angeles Unified School District’s vaccine mandate for students, which has been delayed until fall. In December, a Los Angeles Superior Court judge denied the groups’ request to block implementation of the mandate.

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