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: Who gave a 50-year-old federal company the authority to create a vaccination mandate? Behind Supreme Courtroom determination to dam Biden's clerk mandate

Has anyone actually given a 50-year-old federal agency — the government's occupational health and safety agency — the legal authority to create vaccination or testing rules for COVID-19 that could affect 84 million private sector workers?

The Supreme Court issued a ruling Thursday that prevented the Biden administration from enforcing a requirement that employees at large companies be vaccinated against COVID-19 or undergo weekly tests and wear a mask at work. However, the judges allow the government to proceed with a vaccination mandate for most healthcare workers in the United States.

If those rules had gone into effect on Monday, January 10, another question would loom over the Supreme Court proceedings: would such a mandate mitigate or contribute to the sky-high surge in new COVID-19 infections from the Omicron variant lead to brain drain? who refuse to be subject to vaccination regulations?

These were some of the key questions faced by US Supreme Court justices last week in arguments over the federal government's vaccination or testing mandate for companies with at least 100 workers.

When it came to the controversial OSHA rules, trade associations and Republican-leaning states wanted immediate residency. They say OSHA is way beyond its powers with a mandate that will cause companies to bleed staff and money on compliance costs.

On the other side of the argument, the Biden administration says this moment is exactly what OSHA was built for: developing rules to protect workers when they go to work.

However, the Supreme Court wanted to disagree. “OSHA has never imposed such a mandate before. Neither does Congress. Although Congress has enacted significant legislation to address the COVID-19 pandemic, it has declined to take measures similar to those promulgated by OSHA here," the court's conservative majority wrote in an unsigned statement.

Three-fourths of employers surveyed in a recent survey said they would only make vaccination mandatory if OSHA rules stood up in court. In another survey, about a third of companies said they would apply the mandate only when required by law.

Here are three themes that emerged during last week's altercations:

“This will create a massive economic shift”

OSHA unveiled its rules in early November, mandating either vaccination or weekly testing, weeks before anyone had ever heard of the Omicron variant, a highly transmissible but – so far – less severe COVID-19 mutation.

According to a New York Times case tracker, the US recorded an average of 781,203 new COVID-19 infections, a 159% increase over a two-week period. Hospital admissions rose 82% from two weeks earlier to 145,005.

"Are you doing that now? To tell the public interest in this situation, stop this vaccination rule, with almost a million people, don't let me exaggerate, almost three-quarters of a million people, new cases every day?” Judge Stephen Breyer asked the attorney representing companies to who want the court to stick to the rules. "I mean, for me, I would find that incredible."

"Judge Breyer, we are asking for a stay before the enforcement takes effect Monday and this is because this is an unprecedented action by the agency," said Attorney Scott Keller, representing the business groups.

Breyer — generally associated with the court's liberal wing — continued questioning, sounding incredulous. “This is going to cause a massive economic shift in the country, billions and billions in unrecoverable costs. Tests are also not commonly available,” Keller replied.

"The government is trying to work across the waterfront"

The Occupational Safety and Health Administration was formed when President Richard Nixon signed legislation in 1970 establishing the agency a year later.

Decades later, Prelogar told the court that addressing workplace risk from infectious diseases was "OSHA's core authority." While opponents of the mandate say Congress must now approve COVID-19 mandates, Prelogar said the court only needs to deal with the wording of the Occupational Health and Safety Act.

But it's been a long time since that law became law, Chief Justice John Roberts said.

“That was 50 years ago when you said Congress acted. I don't think it had COVID in mind. That was almost closer to the Spanish flu than today's problem," he said.

With the slew of other federal agency immunization requirements — like that for healthcare workers and federal contractors — "it seems to me that the government is trying to work across the boardwalk and go from agency to agency" rather than through Congress, Roberts, generally perceived as a conservative judge, said.

If OSHA has the power, why not also mandate polio and flu vaccines in the workplace, asked Justice Neil Gorsuch, a conservative-leaning judge. The size and scope of the COVID pandemic takes it to another level, Prelogar said.

The judges also urged the mandate opponents to the purpose of OSHA.

If the agency cannot protect workers from unsafe environments, what is it for, Judge Sonia Sotomayor, who is widely identified as a liberal-minded member of the court, wondered at another point in the argument. "What's the difference between that and telling employers that where sparks fly in the workplace, your workers must wear a mask?"

"If scraps fly at the workplace, it's probably because there's a machine there that only exists there," replied Keller, representative of the trade associations.

"Why isn't man like a machine when he spits out a virus?" asked Sotomayor.

"A nationwide blunderbuss rule"

The OSHA mandate is "a statewide blunderbuss rule," said Ohio Attorney General Benjamin Flowers, arguing on behalf of states opposed to the mandate. He spoke remotely last Friday because he recently tested positive for COVID-19.

COVID-19 is "a danger that we all just face when we wake up in the morning," he said. So this isn't a specific workplace threat where OSHA should step in with a broad mandate, he said.

Judge Elena Kagan, who is considered a moderate member of the court's liberal wing, saw things differently. Think of something like a baseball game, she remarked. A person can choose to go to the game and they can choose who to go with when they want to go.

"But you can't do that at work. You have to be there, you have to be there eight hours a day," she said. A worker has to deal with the same setting and work with the same people, "who may be completely irresponsible. Where else are people at greater risk than in the workplace?”

At another point, Judge Amy Coney Barrett, a member of the court's conservative enclave, noted that not all jobs are created equal. The risks of infection for some are much greater, such as for people working in a meatpacking plant. Have companies argued that some rules are necessary – but that the focus needs to be stricter, she asked?

"Wherever that line is, (the OSHA regulation) is so far beyond that line," Keller said.

In their commentary published on Thursday, the three liberal Supreme Court justices disagreed. "The court is acting outside of its jurisdiction and without legal basis, supplanting the judgments of government officials who have been given the responsibility to respond to workplace health emergencies," Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor wrote in a joint dissent.

(The Associated Press contributed to this report.)

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