As an editorial board, we have been clear and forthright about our support for vaccine mandates in the workplace. Even in the midst of a worldwide pandemic, not everyone is ready to do the right thing, for themselves and others, by getting a safe, effective and free vaccine.
Some people need that one final push to protect themselves and others from serious illness or even death.
So we were hoping the Supreme Court would defer to public health expertise during a crisis — nearly 850,000 deaths, an average of over 800,000 new cases every day, a steady increase in hospitalizations of, overwhelmingly, the unvaccinated — and uphold the Biden administration’s vaccine-or-test mandate for large employers.
Instead, the court, by a 6-3 vote, said no, striking down the mandate that would have applied to some 80 million U.S. employees.
Whatever the legal issues involved here, public health lost out to the views of six conservative justices. Those justices are so concerned about supposed government overreach that they view the simple act of getting vaccinated or taking a non-invasive test as, according to their unsigned majority opinion, “a significant encroachment into the lives — and health — of a vast number of employees.”
How many of those employees might now end up with an even worse encroachment on their lives: a stay in a hospital ICU hooked up to a ventilator?
“In the face of a continually evolving COVID-19 pandemic that poses a serious danger to the health of our nation, the Supreme Court today halted one of the most effective tools in the fight against further transmission and death from this aggressive virus,” as AMA President Gerald Harmon said in response to the ruling.
The six conservative justices wrote the Occupational Safety and Health Administration exceeded its authority when it imposed the mandate as a “blunt instrument” last fall.
Blunt instruments are sometimes needed — in this case, to maintain workplace safety during a pandemic that shows little sign of easing up.
In a dissenting opinion, the Court’s three liberal justices made clear that regulating workplace safety is exactly what OSHA is empowered to do.
“Underlying everything else in this dispute,” the justices wrote, “is a single, simple question: Who decides how much protection, and of what kind, American workers need from COVID-19? An agency with expertise in workplace health and safety, acting as Congress and the president authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes?”
“In the face of a still-raging pandemic, this Court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed,” they wrote.
Workplace transmission, as the AMA’s president pointed out, “has been a major factor in the spread of COVID-19” — and workers everywhere “need commonsense, evidence-based protections“ against the virus.
Most Americans, polls have shown, already disapprove of how the Supreme Court is handling its job. This latest ruling is likely to make those numbers rise, since polls have also shown most Americans, weary of a seemingly endless pandemic, approve of the Biden administration’s vaccine mandates.
When more Americans come to view the Court as partisan, it’s bad news not only for the Court but for our democracy overall.
In a second ruling, the Court ruled in favor of a less-sweeping vaccine mandate for employees of health care facilities that participate in Medicare and Medicaid. Two of the court’s conservatives, Chief Justice John Roberts and Justice Brett Kavanaugh, sided with the three liberal justices to provide a 5-to-4 majority.
That’s good news. If there’s any one segment of society that ought to be vaccinated, it’s those caring for the sick, disabled and elderly in hospitals, long-term care facilities and the like.
Businesses should go it alone
Some business leaders applauded the Court’s ruling, saying a vaccine mandate would be too burdensome as employers struggle with the current nationwide labor shortage.
We get it: Businesses are in need of workers. A mandate is likely to turn off some potential applicants who might be good at a job — but just don’t want to get a shot.
But what about those applicants searching for a safe workplace? Maybe they’re immune-compromised or have a pre-existing condition that puts them at greater risk of severe illness. Maybe they have an elderly parent or a child too young to be vaccinated.
Employers run the risk of turning off those applicants, too.
Fortunately, some businesses — including major corporations such as Starbucks, Walgreens and United Airlines — have done the right thing by imposing vaccination mandates on their own.
We urge every business, large and small, to do the same.
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