Supreme Court appears skeptical of workplace vaccine rule

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The sketch of this artist’s action in Supreme Court on Friday depicts attorney Scott Keller standing to advocate on behalf of more than two dozen business groups seeking to stay an order from the Biden administration to impose a demand for vaccine or test to large employers nationwide. (Dana Verkouteren via AP)

WASHINGTON (AP) – Fully vaccinated and largely masked, the conservative Supreme Court majority appeared skeptical on Friday about the power of the Biden administration to impose a vaccine or testing requirement on large employers nationwide. The court seemed more open to a separate vaccine mandate for most healthcare workers.

The arguments in both cases come at a time when coronavirus cases are on the rise due to the omicron variant, and the decision by seven judges on Friday to wear masks for the first time while hearing the arguments reflected the new phase of the pandemic .

Eighth judge, Sonia Sotomayor, diabetic since childhood, did not even show up in the courtroom, choosing to stay in her office in court and participate remotely. Two attorneys, representing Ohio and Louisiana, have argued over the phone after recent positive COVID-19 tests, state officials said.

But the circumstances of COVID do not appear to outweigh the opinions of the court’s six conservatives that the administration has overstepped its authority in its vaccine or testing requirement for companies with at least 100 employees.

“This is something the federal government has never done before,” said Chief Justice John Roberts, questioning the administration’s argument that a law established for half a century, the Act on occupational safety and health, confers such authority.

Roberts and Justices Brett Kavanaugh and Amy Coney Barrett likely hold the key to the outcome in both cases, as they have been more receptive to state-level vaccine requirements than the other three Tory judges. Barrett and Kavanaugh also posed tough questions to Solicitor General Elizabeth Prelogar, the administration’s top lawyer on the Supreme Court.

The court’s three liberal judges suggested supporting the employer rule. Judge Elena Kagan said officials had made it “pretty clear that no other policy will prevent illness and death as much as this one.” And Judge Stephen Breyer said he found it “unbelievable” that it could be in the “public interest” to suspend this rule. He said that on Thursday there were some 750,000 new cases in the country and hospitals were full.

As of Monday, unvaccinated employees at large companies are expected to wear masks at work, unless the court blocks the app. But testing requirements and potential fines for employers don’t begin until February.

Legal challenges to the policies of states and Republican-led business groups are in their infancy, but the outcome in the High Court will likely determine the fate of vaccine needs affecting more than 80 million people.

Roberts, Kavanaugh and Barrett seemed to have less doubts about the mandate of vaccines in health care. Kavanaugh said it was a “very unusual situation” for hospitals and healthcare organizations affected by the regulation to “not complain here” about the rule but to support it. “What are we to do with this?” He asked.

The second regulation is a mandate that would apply to virtually all health workers in the country. It covers healthcare providers who receive federal Medicare or Medicaid funding, potentially affecting 76,000 healthcare facilities as well as home care providers. The rule has medical and religious exemptions.

Decisions by the New Orleans and St. Louis federal appeals courts have blocked the mandate in about half of the states. The administration said it was taking steps to implement it in the rest.

“I think what is really at stake is whether these warrants will come into effect,” said Sean Marotta, a Washington lawyer whose clients include the American Hospital Association. The business group is not involved in Supreme Court cases.

The two vaccine rules would exacerbate labor shortages and cost businesses dearly, lawyer Scott Keller argued on Friday on behalf of more than two dozen business groups. Without an immediate court order, “the workers will quit immediately,” Keller said.

The lawyer for the Prelogar administration told judges that COVID-19 “is the deadliest pandemic in American history and represents a unique danger in the workplace.” OSHA has estimated that its emergency regulations will save 6,500 lives and prevent 250,000 hospitalizations over six months.

Nearly 207 million Americans, 62.3% of the population, are fully immunized, and more than a third of them have received boosters, including all nine judges.

Andy Slavitt, former Biden administration adviser on COVID-19, said vaccine requirements are extremely effective for 15% to 20% of Americans “who don’t like to get vaccinated but they will and don’t ‘will have no strenuous effort. objection.”

The High Court is weighing down the administration’s vaccination policies for the first time, though judges have rejected calls to freeze state-level mandates.

A conservative majority concerned about the federal overrun has ended a federal moratorium on evictions put in place due to the pandemic.

The two vaccination cases were rushed to court, and the court made the unusual decision to schedule the arguments rather than just rule on the briefs submitted by the parties. Unlike other cases the court hears, a decision by the judges could take weeks or even days.

Due to the pandemic, judges heard the cases in a courtroom closed to the public. Only judges, lawyers involved in the cases, court staff and journalists were allowed entry. The public was able to listen live, however, a change made earlier in the pandemic when judges for nearly 19 months heard the cases over the phone.

The court has asked lawyers to have negative coronavirus tests and to participate remotely if they test positive. Ohio Solicitor General Benjamin Flowers, who opposed the employer’s rule, tested positive for COVID-19 after Christmas, had mild symptoms and made a full recovery, but a Sunday test required by the court detected the virus, a spokeswoman said. He had been vaccinated and had received a booster.

Louisiana Attorney General Elizabeth Murrill, who opposed the healthcare worker rule, was also arguing remotely “based on court protocol,” State Attorney General Jeff Landry said . Landry was in court for Friday’s arguments.

It was the first time since the court returned to in-person arguments in October that lawyers had argued from a distance.

Judge Neil Gorsuch was the only judge to remain unmasked throughout the pleadings, which lasted over 3.5 hours. He sits between Barrett and Sotomayor. The court did not explain why Sotomayor did not take the bench.

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