Supreme Court halts COVID vaccine rule for businesses. Here’s who it affects in NC.

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The Supreme Court has stopped a major push by the Biden administration to boost the nation’s COVID-19 vaccination rate, a requirement that employees at large businesses get a vaccine or test regularly and wear a mask on the job.

At the same time, the court is allowing the administration to proceed with a vaccine mandate for most health care workers in the United States. The court’s orders Thursday came during a spike in coronavirus cases caused by the omicron variant.

The Biden administration sought to impose the Occupational Safety and Health Administration’s vaccine-or-test rule on U.S. businesses with at least 100 employees. More than 80 million people would have been affected.

In North Carolina, the vaccine-or-test requirement would have impacted a minimum of 6,300 establishments and at least 1.2 million workers, said N.C. Labor Commissioner Josh Dobson, a Republican who has opposed the rule.

“I’m very pleased with the Supreme Court ruling, and my hope is that this vaccine mandate is finished once and for all,” Dobson told The News & Observer.

Dobson previously said he was weighing whether he would implement the requirement or not in North Carolina.

In a November interview shortly after Biden announced the vaccine requirement, Dobson, who has been vaccinated, said he was concerned that requiring either vaccines or testing could further exacerbate worker shortages. The federal government had not provided additional funding to help the state enforce the mandate, Dobson said.

“To ask compliance officers to do this on top of everything else to me is fundamentally unfair and not well thought out,” Dobson said at the time.

Duke Energy, Red Hat take differing approaches

The court’s ruling got mixed reactions from some of the Triangle’s largest employers.

Red Hat, which had implemented its own vaccine mandate before Biden’s executive order was announced, said its plans to mandate vaccines for its employees would not change.

“The Court’s decision today doesn’t apply to the regulations Red Hat is following so we don’t have plans to change our mandate at this time,” Red Hat spokeswoman Allison Showalter said in an email. “Of course, we are always assessing the situation and, as things change, we may make adjustments to our policy based on what’s best for our associates’ health and well-being.”

Duke Energy said it would not institute a vaccine mandate for its thousands of employees because of the Supreme Court’s decision. The company had previously said it would monitor OSHA’s guidelines.

“With today’s ruling, we’re no longer implementing” the OSHA mandate, Neil Nissan, a spokesman for Duke Energy said. “However, our commitment to workplace safety has not changed – it’s still our top priority.”

He added that Duke Energy facilities would remain at 50% capacity and employees will be asked to wear face coverings in situations where they can’t practice social distancing.

The North Carolina Chamber maintained Thursday that the executive order would have hurt many businesses.

“Despite a suggestion of urgency, the process and the timelines provided were anything but, and would have only created more uncertainty for employers already tackling unprecedented talent shortages and supply-chain challenges,” the Chamber said in a statement.

Rules for state, federal and private employees are different

Democratic Gov. Roy Cooper recently extended an executive order that requires the tens of thousands of state employees who work for his Cabinet agencies to get vaccinated or start submitting to weekly testing for COVID-19.

“Vaccinations are our way out of this pandemic and we’ve seen that employer policies that require vaccination or testing increase vaccinations and make workplaces safer,” Jordan Monaghan, Cooper’s press secretary, told The News & Observer in an emailed statement on Thursday. “The Governor will continue to encourage employers who enact policies that result in more vaccinations.”

Of the nearly 53,000 state employees subject to Cooper’s order, 77.2% are vaccinated as of Jan. 6.

Statewide, 70% of North Carolinians age 18 and older are fully vaccinated.

Federal workers are required to get vaccinated unless they have an approved exemption, with no option to get regularly tested instead.

A vaccine mandate for federal contractors is on hold after lower courts blocked it, and has not been considered by the Supreme Court.

Supreme Court ruling on OSHA rule

The Supreme Court’s conservative majority concluded the Biden administration overstepped its authority.

“OSHA has never before imposed such a mandate. Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here,” the conservatives wrote in an unsigned opinion.

In dissent, the court’s three liberals argued that it was the court that was overreaching by substituting its judgment for that of health experts.

“Acting outside of its competence and without legal basis, the Court displaces the judgments of the Government officials given the responsibility to respond to workplace health emergencies,” Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor wrote in a joint dissent.

President Joe Biden said he was “disappointed that the Supreme Court has chosen to block common-sense life-saving requirements for employees at large businesses that were grounded squarely in both science and the law.”

Biden called on businesses to institute their own vaccination requirements, noting that a third of Fortune 100 companies already have done so.

When crafting the OSHA rule, White House officials always anticipated legal challenges — and privately some harbored doubts that it could withstand them. The administration nonetheless still views the rule as a success at already driving millions of people to get vaccinated and encouraging private businesses to implement their own requirements that are unaffected by the legal challenge.

The OSHA regulation had initially been blocked by a federal appeals court in New Orleans, then allowed to take effect by a federal appellate panel in Cincinnati.

Both rules had been challenged by Republican-led states. In addition, business groups attacked the OSHA emergency regulation as too expensive and likely to cause workers to leave their jobs at a time when finding new employees already is difficult.

The National Retail Federation, the nation’s largest retail trade group, called the Supreme Court’s decision “a significant victory for employers.”

And Sen. Richard Burr of North Carolina, the top Republican on the Senate health committee, said in a news release: “I’m a huge proponent of encouraging every American who is eligible to get vaccinated and boosted against COVID-19. Amid supply chain issues and labor shortages, however, the last thing we need to do is place unnecessary pressure on an already strained workforce.

“Instead, I hope the Administration will focus on developing a long-term strategy on COVID-19.”

Health care workers mandate stays

The vaccine mandate that the court will allow to be enforced nationwide scraped by on a 5-4 vote, with Chief Justice John Roberts and Justice Brett Kavanaugh joining the liberals to form a majority. The mandate covers virtually all health care workers in the country, applying to providers that receive federal Medicare or Medicaid funding. It potentially affects 76,000 health care facilities as well as home health care providers. The rule has medical and religious exemptions.

Biden said that decision by the court “will save lives.”

In an unsigned opinion, the court wrote: “The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it. At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.” It said the “latter principle governs” in the healthcare arena.

Justice Clarence Thomas wrote in dissent that the case was about whether the administration has the authority “to force healthcare workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo.” He said the administration hadn’t shown convincingly that Congress gave it that authority.

Justices Samuel Alito, Neil Gorsuch and Amy Coney Barrett signed onto Thomas’ opinion. Alito wrote a separate dissent that the other three conservatives also joined.

Decisions by federal appeals courts in New Orleans and St. Louis had blocked the mandate in about half the states. The administration already was taking steps to enforce it elsewhere.

More than 208 million Americans, 62.7% of the population, are fully vaccinated, and more than a third of those have received booster shots, according to the federal Centers for Disease Control and Prevention. All nine justices have gotten booster shots.

The courthouse remains closed to the public, and lawyers and reporters are asked for negative test results before being allowed inside the courtroom for arguments, though vaccinations are not required.

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