FIVE FREEDOMS: [Legal Opinion] “Supreme Court Split Decision-OSHA Rule Stayed, CMS Rule Upheld; For Now.”
The win: It is good news for 80 million workers that OSHA’s stay of experimental Covid shots has been upheld. It should be good news to the corporations who are victims of regulatory overreach. However, it is curious that some corporations have instituted non-mandated internal vaccine policies—Something that has never happened. This opens them to liability for those employees injured by the Covid shot.
The loss: CMS’s health care worker mandate has been upheld. This is the first time in history the federal government has mandated an experimental genetic therapy for health care workers. This is very dangerous precedent and will kill and injure many. If it stands, it signals a dismal future in health care where workers are subject to more and more unnecessary, potentially harmful medical treatment.
This is not over. The OSHA and CMS decisions return to the lower courts where the facts will be established. The facts in Court on the record and in the argument were stale and no longer operative.
Assumptions underlying the opinion that we know are unfounded are:
- The vaccinated do not spread the virus. They do.
- Vaccinating health care workers protects patients. It does not.
- The vaccine targets the Delta virus. It does, that is the problem, the virus has evolved.
- That health care workers are a serious threat to patients. They are not. Most have robust immunity due to two years of exposure to Covid patients.
- That one shot fits all. Risk should be analyzed and stratified.
- Natural Immunity seemed absent from the arguments.
Even with the CMS mandate being upheld, Medical and other employees are allowed medical and religious exemptions under the rules.
SHORT EXCERPTS FROM THE OPINIONS
OSHA employers with 100 or more workers, from the Court:
OSHA is tasked with ensuring occupational safety—that is, “safe and healthful working conditions.” §651(b). It does so by enforcing occupational safety and health standards promulgated by the Secretary. §655(b). Such standards must be “reasonably necessary or appropriate to provide safe or healthful employment.” §652(8) (emphasis added). They must also be developed using a rigorous process that includes notice, comment, and an opportunity for a public hearing. §655(b). The Act contains an exception to those ordinary notice and-comment procedures for “emergency temporary stand ards.” §655(c)(1). Such standards may “take immediate effect upon publication in the Federal Register.” Ibid. They are permissible, however, only in the narrowest of circumstances: the Secretary must show (1) “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and (2) that the “emergency standard is necessary to protect employees from such danger.”…
Applicants are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate. Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided….
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. The question, then, is whether the Act plainly authorizes the Secretary’s mandate. It does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures….
Although COVID– 19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.
A vaccination…“cannot be undone at the end of the workday.” In re MCP No. 165, 20 F. 4th, at 274 (Sutton, C. J., dissenting). 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.”…
OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace.
CMS-Health Care Workers, from the Court:
Medicare and Medicaid are administered by the Secretary of Health and Human Services, who has general statutory authority to promulgate regulations “as may be necessary to the efficient administration of the functions with which [he] is charged.” 42 U. S. C. §1302(a). 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.”
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.”
We accordingly conclude that the Secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID–19.
The rule requires providers to offer medical and religious exemptions, and does not cover staff who telework full-time.
In many facilities, 35% or more of staff remain unvaccinated and those staff, the Secretary explained, pose a serious threat to the health and safety of patients. That determination was based on data showing that the COVID–19 virus can spread rapidly among healthcare workers and from them to patients, and that such spread is more likely when healthcare workers are unvaccinated.
That good cause was, in short, the Secretary’s belief that any “further delay” would endanger patient health and safety given the spread of the Delta variant and the upcoming winter season.
The Secretary of Health and Human Services determined that a COVID–19 vaccine mandate will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients.