OSHA vaccine mandates on trial! Justices hear separate arguments over federal vaccine mandates


Supreme Court Justices hear separate arguments over federal vaccine and testing rules for vaccination mandates.


The justices heard separate oral arguments over federal vaccine and testing rules for larger businesses and vaccine mandates for health care workers at facilities receiving Medicaid and Medicare funding.

Several Republican-led states, business coalitions, religious groups, and other opponents have challenged the Biden orders- known as “emergency temporary standards.” 

The issue could also serve as a legal template to the regulatory limits of the governments across a range of future disputes over executive authority.

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Justice Breyer points to the increase in cases and hospitalizations across the country due to Omicron and asks how it can be in the public interest.


“How can it conceivably be in the public interest with three-quarters of a million people, I don’t know how many today, you have hospitalization figures growing by factors of 10, you have hospitalizations near the record, at the record… how can it be in the public interest, which is a requirement,” Justice Breyer said. “That’s what I want to hear the answer to.”

Keller warned in response: “This is going to cause a massive economic shift in the country, billions and billions of nonrecoverable costs.”  Adding that only “28% of employers can find adequate weekly testing. He also argues that If Congress intended for OSHA to have that kind of power, it should have clearly stated so.”

For more than two hours, the justices heard oral arguments over federal vaccine and testing rules for 100 employees or more businesses. It is now hearing arguments on vaccine mandates for healthcare workers at facilities receiving Medicaid and Medicare funding. 

In the early parts of the arguments, Chief Justice John Roberts and Justice Neil Gorsuch suggested that government officials had overstepped. Roberts declared that it is “hard to argue” that officials had been given the power to act by Congress.

Justice Amy Coney Barrett went on the offensive during the oral arguments, suggesting that its broad scope was one problem with the rule. Asking attorney Keller if he argues that power is overly broad and if OSHA could require it for high-risk areas like dentistry, meatpacking, healthcare.

“This ETS is so far beyond healthcare and what Congress defined as high-risk workplaces,” he says. Barrett then asks if he would be here arguing against this standard if it was just masking and testing – no vaccines. He says yes because it is still a medical procedure.

Justice Stephen Breyer also said he found it “unbelievable” that it could be in the public interest to put vaccine mandate for employees on hold, as cases for the highly transmissible omicron variant of COVID-19 surge across the nation as hospitals reach capacity.

Thankfully, the high court has the option of issuing a brief administrative order on whether to stay in enforcement of the mandate, which could come as early as Friday or over the weekend. A more complete written ruling explaining its decision would likely come later.

At this point, the Department of Labor’s OSHA mask mandate was set to go into effect on Monday, Jan 10, while its testing mandate is set to kick in next month, on Fed. 9. OSHA has said it would not impose fines on businesses that don’t comply before late February.

The attorney representing the government, Solicitor General Elizabeth Prelogar, argued that OSHA “found there is grave harm every day and the numbers are stark,” but later said that if the court believes it needs additional time, it can take it.

The question isn’t what this country will do about COVID. It’s who gets to decide that.


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