The Supreme Court has stayed the COVID-19 vaccine-or-test mandate for businesses of 100 or more employees, finding the Occupational Safety and Health Administration did not have the authority to issue it.

In an unsigned opinion, the court called the mandate a “blunt instrument.”

“Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly,” the court said. “Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”

“There are narrow exemptions for employees who work remotely ‘100 percent of the time’ or who ‘work exclusively outdoors,’ but those exemptions are largely illusory,” the court found.

At the same time, the Supreme Court let stand a rule requiring vaccinations of health care workers at facilities that receive Medicaid or Medicare funding.

The workplace emergency temporary standard (ETS) which took effect Monday required employees to get vaccinated or undergo a weekly test and wear a mask to their job.

Far from an “everyday exercise of federal power,” the high court said it is “a significant encroachment into the lives — and health — of a vast number of employees.”

The National Council of Farmer Cooperatives said in a statement that the court's decision "shows that OSHA needs to consider other alternatives to encourage vaccinations for workers across the country. Since the ETS was first proposed, NCFC has consistently stated that forcing difficult testing and enforcement actions on employers would not help achieve that goal and would, in the worst case, only magnify the labor shortages being experienced across the food and agriculture supply chain. We encourage the Biden administration to rethink their approach on this issue and take a more collaborative approach to encourage vaccinations.”

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The Occupational Safety and Health Act of 1970 “empowers the Secretary [of Labor] to set workplace safety standards, not broad public health measures,” the court said. Chief Justice John Robers had raised questions during oral arguments about the authority of the 50-year-old law on the subject.

Responding to the government’s arguments, the court said “although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most.”

Dissenting, Justices Sonia Sotomayor, Stephen Breyer and Elena Kagan called COVID “a menace in work settings.”

The ETS “falls within the core of the agency’s mission: to ‘protect employees’ from ‘grave danger’ that comes from new hazards” or exposure to harmful agents, the three justices wrote, quoting the OSH Act.

“OSHA estimates — and there is no ground for disputing — that the standard will save over 6,500 lives and prevent over 250,000 hospitalizations in six months’ time,” they said.

FMI-the Food Industry Association, the International Food Service Distributors Association, American Bakers Association and National Association of Convenience Stores, as well as grocers in Ohio and Tennessee joined in the National Federation of Independent Business brief seeking a stay. Unions led by the AFL-CIO and including the United Food and Commercial Workers International Union called for keeping it in place.

Also reacting to the decision, the National Grocers Association said, “The court’s ruling takes some pressure off independent community grocers, who already face daunting staffing challenges amid a nationwide labor shortage.”

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