oral argument Friday in two sets of challenges to the Biden administration’s authority to take action to combat the pandemic. In the first case, National Federation of Independent Business v. Department of Labor, the justices will consider the Biden administration’s attempt to impose a vaccine-or-test mandate for workers at large employers. In the second case, Biden v. Missouri, they will consider a vaccine mandate for health care workers at facilities that receive federal funding.
*In imposing the vaccine-or-test mandate, Solicitor General Elizabeth Prelogar emphasizes, OSHA simply exercised the power that Congress gave it under the Occupational Safety and Health Act of 1970, which directs OSHA to issue emergency rules when it determines that a rule is “necessary” to protect employees from a “grave danger” from exposure to “physically harmful” “agents” or “new hazards.” Emergency rules can go into effect immediately, without the notice-and-comment procedures normally required for agency rulemaking. In this case, Prelogar continues, OSHA concluded that the COVID-19 virus is “both a physically harmful agent” and a “new hazard,” and that unvaccinated employees who are exposed to the virus at work face a “grave danger.” Therefore, she reasons, the mandate is necessary to protect those employees from the possibility of contracting COVID-19 while they are at work – saving over 6,500 lives and preventing over a quarter-million employees from being hospitalized over a six-month period. . .
The key question, the administration tells the justices, is whether the requirements of the OSH Act have been met, and they have been: OSHA has determined that the COVID-19 virus is “a physically harmful agent, exposure to it in the workplace presents a grave danger to employees, and the [mandate] is necessary to protect employees from that danger.” Moreover, the administration adds, Congress not only envisioned that OSHA might require immunizations to protect workers, but in the American Rescue Plan of 2021, it also instructed OSHA to use its authority to protect workers from COVID-19 – and even appropriated funds for it to do so. . .
The issues and arguments in the dispute over the Medicare/Medicaid vaccine mandate are in many ways similar to those in the employer vaccine-or-test mandate. The administration contends that Congress gave HHS broad authority, including the power to require health care facilities that want to participate in Medicare and Medicaid to comply with conditions that the secretary concludes are “necessary in the interest of the health and safety” of their patients. Using that power, the administration writes, HHS has long required health care facilities to establish programs to prevent and control infectious diseases.'>>>
https://www.scotusblog.com/2022/01/biden-vaccine-policies-face-supreme-court-test-amid-nationwide-covid-19-surge/
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