The United States Supreme Court is mulling whether the Biden administration can require millions of workers at private companies and healthcare providers to be vaccinated against COVID-19 or face regular coronavirus testing.
The top court justices heard more than three and a half hours of oral arguments on Friday in two cases that are challenging the Biden administration’s authority to impose sweeping vaccine requirements on the US’s large employers.
The hearing came as coronavirus cases are surging across the country due to the spread of the highly contagious Omicron variant.
“This is something the federal government has never done before,” Chief Justice John Roberts said on Friday, casting doubt on the administration’s argument that a half-century of established law, the Occupational Safety and Health Act, give it broad authority.
At issue is whether the COVID-19 pandemic in the US outweighs legal claims that the administration overstepped its authority in requiring businesses with at least 100 employees to ensure workers are vaccinated or tested.
A rule published by the US Occupational Safety and Health Administration (OSHA) in November requires businesses with 100 or more workers to see that employees are vaccinated or, if they are not, tested weekly and masked while working. There are exceptions for those who work alone or mostly outdoors.
The sweeping OSHA rule, upheld by a lower US court, applies to as many as 80 million US workers and it is scheduled to begin taking effect on January 10 unless the Supreme Court blocks enforcement.
Testing requirements for unvaccinated people and potential fines for employers that do not comply would begin in February.
Meanwhile, the Centers for Medicare and Medicaid Services published a rule requiring a range of healthcare providers that receive federal funding to get employees fully vaccinated by January 4.
That rule was projected to affect more than 17 million workers in about 76,000 healthcare facilities as well as home healthcare providers.
Chief Justice Roberts and Justices Brett Kavanaugh and Amy Coney Barrett may determine the outcome in both cases. They have been more receptive to state-level vaccine requirements than the other three conservative justices.
The court’s three liberal justices suggested support for the employer rule. Justice Elena Kagan said officials have shown “quite clearly that no other policy will prevent sickness and death to anywhere like the degree that this one will”.
Justice Stephen Breyer said he found it “unbelievable” that it could be in the “public interest” to put the OSHA rule on hold, noting that on Thursday there were 750,000 new COVID-19 cases in the US and many hospitals are full.
Roberts, Kavanaugh and Barrett seemed to have fewer doubts about the healthcare vaccine mandate.
Kavanaugh said it was a “very unusual situation” that hospitals and healthcare organisations affected by the regulation were “not here complaining” about the rule but instead support it. “What are we to make of that?” he asked.
Nearly 207 million Americans, 62.3 percent of the population, are fully vaccinated, and more than a third of those have received booster shots, including the nine justices.
Andy Slavitt, a former public health adviser to the Biden administration on COVID-19, said the vaccine requirements are extremely effective for 15 percent to 20 percent of the population “who don’t like to get a shot, but they will and don’t have any strenuous objection”.