The Supreme Court held a special session on Jan. 7 to consider two challenges to the Biden administration’s workplace vaccine requirements.

 

The first one challenges the rule that private employers require workers to be vaccinated or wear masks on the job and submit to weekly testing, and the second challenges the administration’s rule that employees at health care facilities receiving Medicare and Medicaid funding be vaccinated.

 

The vaccine rules affect up to 100 million workers. 

 

The clock is ticking for the justices. In an unusual move, the court said it would move with exceptional speed on the two measures.

 

The Biden administration has said it would start requiring compliance with the healthcare worker policy on Jan. 10, though companies would have until Feb. 9 to set up testing programs. In the states where this regulation has not been blocked, workers are required to be fully vaccinated by Feb. 28.

 

Employers are currently unsure how to proceed, with some concerned about losing staff in a tight labor market if they impose vaccine or testing requirements, said Todd Logsdon, a lawyer based in Louisville, Kentucky who represents companies on workplace safety.

 

"The quicker they can issue the decision the better," Logsdon said of the Supreme Court.

 

The Occupational Safety and Health Administration issued the vaccine-or-test mandate on Nov. 5. It requires all employers with more than 100 employees to mandate that those employees be either fully vaccinated against COVID-19 or be tested weekly and wear masks at work.

 

The White House has pointed to OSHA’s authority to issue emergency workplace rules for up to six months to protect employees from "substances or agents determined to be toxic or physically harmful or from new hazards." That authority gives OSHA the responsibility to act, the administration has said.

 

The private employer mandate applies to companies with 100 or more workers. Critics say the government is over-reaching. Critics say the rules would force millions of workers to "choose between losing their jobs or complying with an unlawful federal mandate."

 

The more sweeping of the two measures, directed at businesses with 100 or more employees, would affect more than 84 million workers and is central to the administration’s efforts to address the pandemic. The administration estimated that the measure would cause 22 million people to get vaccinated and prevent 250,000 hospitalizations.

 

The Supreme Court has repeatedly upheld state vaccine mandates in a variety of settings against constitutional challenges. But the new cases are different, because they primarily present the question of whether Congress has authorized the executive branch to institute the requirements.

 

The vaccination-or-testing requirement for large employers was issued in November by the Labor Department’s Occupational Safety and Health Administration.

 

Employers are allowed to give their workers the option to be tested weekly instead of getting the vaccine, though they are not required to pay for the testing. The rule makes an exception for employees who do not come into close contact with other people at their jobs, like those who work at home or exclusively outdoors.

 

Under a 1970 law, OSHA has the authority to issue emergency rules for workplace safety, provided it can show that workers are exposed to a grave danger and that the rule is necessary.

 

The Occupational Safety and Health Administration issued the vaccine-or-test mandate on Nov. 5. It requires all employers with more than 100 employees to mandate that those employees be either fully vaccinated against COVID-19 or be tested weekly and wear masks at work.