Philadelphia Enquirer – by Bob Fernandez
In the midst of the latest surge in omicron COVID-19 cases, the U.S. Supreme Court will hear arguments Friday on whether the Biden administration can force private-sector firms to vaccinate or test tens of millions of employees.
The court is expected to make a decision swiftly that could freeze the vax-or-test mandates on businesses with more than 100 workers — and the threat of fines — or let the Biden plan be implemented, legal experts say. The Occupational Safety and Health Administration, or OSHA, which regulates workplace safety, has said it could begin fining businesses that fail to comply with the mandates on Jan. 10.
Employers “are waiting to see the outcome in the courts,” Wendell Young IV, president of the United Food and Commercial Workers Local 1776, which represents 35,000 Pennsylvania union members, said last week.
John S. Ho, co-chair of OSHA-Workplace Safety Practice at Cozen O’Connor, said that companies should be developing a “roster of vaccination status” of employees to show OSHA “good faith” in complying with the mandates.
“You should have that roster in place by Jan. 10,” he said. But Ho also is advising companies to take a “wait-and-see approach” on implementing the vaccination mandates that could lead some employees to quit.
A firm can be fined $13,600 per violation. OSHA is expected to mostly enforce the mandate through employee complaints. “It’s a politically charged issue. There is no way to avoid that,” Ho said.
The Biden administration says the emergency rules could save the lives of 6,500 workers and prevent 250,000 hospitalizations in the next six months as COVID-19 presents a “grave danger” to employees where they work. The Inquirer estimates that 1.8 million Philly-area workers fall under the mandates. Nationally, two out of three employers fall under it, representing about 80 million workers.
Firms, business trade associations, and 27 states say that the Biden administration has exceeded its authority at the workplace safety agency with the mandates that appear designed to boost vaccination rates and that many workers remain unpersuaded in vaccine benefits.
The case has made it to the U.S. Supreme Court in lightning speed. OSHA announced the mandates in early November and they were immediately challenged in court. On Nov. 12, the appeals court in New Orleans stayed, or froze, the mandates, saying that they were “staggeringly overbroad.” The ruling added that they raised issues of the government’s “virtually unlimited power to control individual conduct under the guise of a workplace regulation.”
Meanwhile, mandate cases filed nationwide were consolidated in the appeals court in Cincinnati. A panel of judges there lifted the stay on Dec. 17. “COVID has continued to spread, mutate, kill and block the safe return of American workers to jobs. To protect workers, OSHA can and must be able to respond to dangers as they evolve,” the court said in its decision.
The Supreme Court justices also will hear arguments on Jan. 7 on whether the federal government can impose mandates on health-care workers who are employed in nursing homes and hospitals funded through Medicare and Medicaid in a similar case.
“What the justices have to weigh is whether this is a public emergency that justifies extraordinary measures,” Laura Little, professor at the Temple University Beasley School of Law, said of the OSHA case. She said that there is “not a lot of case law dealing with vaccinations.”
Michael Dimino, professor at the Widener Law Commonwealth in Harrisburg, said that “the issue is whether [OSHA] has taken discretion too far. There has been push-back on some of these [federal] agencies gone wild.”
Young, the food workers union leader, said he does not believe the mandates will be a “heavy lift” and “would have had them implemented already” if they had not been blocked by the courts.
Young said that a “vocal minority” of his members oppose vaccines. He said that some employers have offered incentives for employees to get the jab. JBS, the meatpacking company with a plant in Souderton, has offered employees $2,100 to be vaccinated, Young said.