On Thursday the Supreme Court ruled 6-3 to block the COVID vaccine or test mandate OSHA had put into place at the direction of Joe Biden. On September 9, Joe Biden requested that OSHA create an emergency temporary standard (ETS) to require all employers of 100 or more mandate a vaccine or test weekly and mask rule in the workplace. The 490-page ETS submitted to the administration in early November would have affected more than 84 million American workers and taken effect this past week.
The 30-page statement issued by the court states:
Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided. The Secretary has ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense. This is no “everyday exercise of federal power.”
It is instead a significant encroachment into the lives—and health—of a vast number of employees. “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” There can be little doubt that OSHA’s mandate qualifies as an exercise of such authority.
…But a vaccine mandate is strikingly unlike the workplace regulations that OSHA has typically imposed. A vaccination, after all, “cannot be undone at the end of the workday.” Contrary to the dissent’s contention, imposing a vaccine mandate on 84 million Americans in response to a worldwide pandemic is simply not “part of what the agency was built for.”
The question before us is not how to respond to the pandemic, but who holds the power to do so. The answer is clear: Under the law as it stands today, that power rests with the States and Congress, not OSHA. In saying this much, we do not impugn the intentions behind the agency’s mandate. Instead, we only discharge our duty to enforce the law’s demands when it comes to the question who may govern the lives of 84 million Americans. Respecting those demands may be trying in times of stress. But if this Court were to abide them only in more tranquil conditions, declarations of emergencies would never end and the liberties our Constitution’s separation of powers seeks to preserve would amount to little.
Supreme Court Upholds Mandate for Healthcare Workers
While the Supreme Court struck down the mandate proposed by OSHA, the court upheld the mandate for any healthcare environment that served patients benefitting from federal Medicare/Medicaid services. The 5-4 ruling effects 17 million Americans.
The ruling stated:
One such function—perhaps the most basic, given the Department’s core mission—is to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety. Such providers include hospitals, nursing homes, ambulatory surgical centers, hospices, rehabilitation facilities, and more. To that end, Congress authorized the Secretary to promulgate, as a condition of a facility’s participation in the programs, such “requirements as [he] finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.”
Relying on these authorities, the Secretary has established long lists of detailed conditions with which facilities must comply to be eligible to receive Medicare and Medicaid funds. See, e.g., 42 CFR pt. 482 (2020) (hospitals); 42 CFR pt. 483 (long-term care facilities); 42 CFR §§416.25–416.54 (ambulatory surgical centers). Such conditions have long included a requirement that certain providers maintain and enforce an “infection prevention and control program designed . . . to help prevent the development and transmission of communicable diseases and infections.”
In addition to the threat posed by infacility transmission itself, the Secretary also found that “fear of exposure” to the virus “from unvaccinated healthcare staff can lead patients to themselves forgo seeking medically necessary care,” creating a further “ris[k] to patient health and safety.”
According to the mandate, religious and medical exemptions will still apply. However, there have been reports of religious exemptions being denied as is the case of numerous hospitals in the past several months. According to Bloomberg law:
It’s up to employers to determine the validity of workers’ requests for an exemption, and denials have historically been fertile ground for legal challenges.
Database Established By Federal Agency
The Federal Register is the daily journal of US government. Just this week it announced the formation of a database to hold the information on those seeking religious exemptions. According to their website the summary states:
Pursuant to the provisions of the Privacy Act of 1974, as amended, the Pretrial Services Agency for the District of Columbia (an independent entity established within the Court Services and Offender Supervision Agency (hereafter “CSOSA” or “Agency”)) is issuing a public notice of its intent to create the Pretrial Services Agency for the District of Columbia Privacy Act system of records, the “Employee Religious Exception Request Information System.” This system of records maintains personal religious information collected in response to religious accommodation requests for religious exception from the federally mandated vaccination requirement in the context of a public health emergency or similar health and safety incident, such as a pandemic, epidemic, natural disaster or national or regional disaster.
The system was to go effective immediately upon the publication of the statement. The document goes on to say:
The employee religious exception request information and records may contain some or all of the following records: Religious accommodation requests, including Request for a Religious Exception to the COVID-19 Vaccination Requirement form, notes, religious affiliation, or records made during consideration of requests, and decisions on requests. These records may contain general personal data, including but not limited to the employee’s, detailee’s, contractor’s, consultant’s, intern’s, applicant’s or volunteer’s name, date of birth, religion, alias, home address, telephone number, age, and email address, telephone number, job title, email address, work address, and program office to which the employee is assigned.
This obscure, federal agency is responsible for monitoring defendants of court cases in Washington D.C. The federal Court Services and Offender Supervision Agency for the District of Columbia, or CSOSA, is the first agency to put a tracking system like this into place. However, the Washington Times indicates they aren’t the only one with plans to:
The federal departments of Treasury, the Interior, Housing and Urban Development, Health and Human Services, and Transportation, as well as the General Services Administration and the Securities and Exchange Commission, have each published proposed rule-makings to implement “systems of records” tracking their workers’ religious accommodation requests.
Sarah Parshall Perry, a legal fellow at the Heritage Foundation’s Institute for Constitutional Government, is quoted several times in the article. She explains her concerns throughout the article:
“…some data collection that is likely and legally permissible under Title VII, when an individual at a covered agency requests a religious accommodation, we have not seen it on a broad scale like this ever.
“We’re not clear on what personal religious information is going to be gathered. How does one as a federal agency determine the sincerity or lack thereof of an individual’s religious beliefs?” she asked rhetorically.
“Normally, information like that goes directly to the [Equal Employment Opportunity Commission] and is maintained for internal purposes, just in the case that there is a future dispute about whether or not religious discrimination exists. However, we’re not told why or how this information is being used. And that smacks of religious discrimination on a grand scale.”