The White House pleaded with the Supreme Court Thursday to leave intact its vaccine mandate for businesses with 100 or more employees, arguing the federal government has the authority to set the vax-or-test rule because the Omicron variant-fueled spike in COVID-19 cases represents a “grave” danger to workers.
“Delaying enforcement of the [mandate] thus would likely cost many lives per day, in addition to large numbers of hospitalizations and other serious health effects,” Solicitor General Elizabeth Prelogar wrote in the Biden administration’s filing. “That is a confluence of harms of the highest order.”
Prelogar added that there is “extensive evidence of ‘workplace transmission’” of coronavirus.
“With the reopening of workplaces, the emergence of highly transmissible variants (both Delta and Omicron), and the rise of COVID fatigue, the danger to workers is not just grave, but worsening,” she claimed.
Because of the dire threat to public health, Prelogar said the Occupational Safety and Health Administration must act to implement the mandate.
“The standard falls squarely within that grant of authority,” she wrote. “SARS-CoV-2 [COVID-19] is both a physically harmful agent and a new hazard; indeed, it has killed more than 800,000 individuals and made millions more seriously ill in the United States alone.”
The justices are scheduled to hear arguments on Jan. 7 in the case against the mandate, which was initially brought in November by a group of trade associations representing trucking and retail industries and independent businesses.
Republican-led states and conservative groups have also sued to stop the mandate, claiming the requirement would cause “irreparable harm of losing employees, incurring substantial and unrecoverable compliance costs, and worsening already fragile supply chains and labor markets.”
The administration’s mandate requires large businesses to ensure that staffers are vaccinated or undergo weekly testing and wear masks. According to the White House, the rule would affect companies who employ approximately 84 million Americans.
OSHA has estimated that the requirement will save 6,500 lives and prevent 250,000 hospitalizations over the next six months, but the agency has also said it will not put the requirement into effect before February due to legal challenges.
A group of 183 Republican members of Congress also filed a “friend of the court” brief on Thursday, claiming the justices must halt the mandate because OSHA does not have the authority to implement it.
“[M]andatory vaccinations do not stop individuals from contracting and transmitting COVID-19,” the GOP filing argued. “Vaccinated workers can still contract and transmit COVID-19, including the new Omicron variant.
“Given that fact, imposing masking and testing restrictions only on unvaccinated workers makes no sense because all workers regardless of vaccination status remain potential carriers and transmitters of the virus,” it continues.
The Republicans further argued that OSHA was never intended to become the “health police.”
“Private healthcare decisions are far afield from federal workplace-safety regimes,” they claimed. “To allow OSHA the authority to control such decisions would remove any semblance of an intelligible principle in the delegated authority that Congress has given the agency.”