By Shereen Siewert, Wausau Pilot & Review

Last week, a majority of Supreme Court justices ruled that the Occupational Safety and Health Administration has the authority to regulate workplace safety, but not public health. A vaccine/testing requirement, the court ruled, is an issue of public health.

Though the ruling meant that OSHA at this time does not have the authority to require private-sector workers to be vaccinated or undergo testing, Congress could pass legislation to pave the way for that authority. Barring that unlikely scenario, the mandate is no longer in place – with significant exceptions.

The court did leave the door open for OSHA to regulate workplaces where COVID-19 represents a direct threat, such as places where people work close to others or where they work around vulnerable people. The court opinion noted, “As its name suggests, OSHA is tasked with ensuring occupational safety — that is, ‘safe and healthful working conditions.’”

So who is still covered by federal vaccine mandates? A list compiled by CNET includes:

  • Federal workers and employees of contractors that do business with the federal government will be required to be vaccinated
  • The Department of Health and Human Services will require vaccinations in Head Start programs, as well as schools run by the Department of Defense and the Bureau of Indian Education.
  • Workers in health care facilities that receive Medicare and Medicaid reimbursements, including hospitals and home health agencies, will also have to be fully vaccinated. (Note: More on that below.)
  • Individuals applying to become lawful permanent US residents must be fully vaccinated, according to the US Citizenship and Immigration Services
  • All 1.3 million active-duty service members 

The ruling comes even while the newest data shows COVID-19 cases spreading, especially among nursing home residents who are unvaccinated or vaccinated but not boosted.

Notably, the court’s ruling does not overturn local and state mandates, while employers are still free to require vaccinations — with some limitations. In 20 states, proof-of-vaccination requirements are prohibited. Wisconsin is not one of them.

Court rules vaccine mandate stands for some health care workers

The court also ruled that because tax dollars are involved, the government can require health care providers who receive Medicare and Medicaid funds to require employees to be vaccinated, according to a report by Al Tompkins, of Poynter. 

That ruling largely affects nursing homes and long-term care facilities where employee vaccination rates have lagged far behind hospitals, he said. The latest Centers for Disease Control and Prevention data shows that just over one in four nursing home workers in the country has gotten fully vaccinated with a booster shot. About 80% of nursing home workers have gotten initial vaccine doses.

In the Wausau area, vaccination rates at nursing homes vary widely. According to the Centers for Medicare and Medicaid Services, just 30 percent of healthcare personnel at Pride TLC Therapy and Living Campus in Weston have received a completed COVID-19 vaccination series as of Jan. 2, 2022.

At Rennes Health and Rehab Center in Weston, the staff vaccination rate for the same time period is 63.4%, while at North Central Health Care the rate is 82.84 percent, according to government data. Perform your own search to compare vaccination rates at local facilities here.

What the justices said

Among the key points in the court order, released last week:

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.

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.

The Act (Occupational Safety and Health Act of 1970) empowers the Secretary to set workplace safety standards, not broad public health measures.

The Act’s provisions typically speak to hazards that employees face at work. And no provision of the Act addresses public health more generally, which falls outside of OSHA’s sphere of expertise.

Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.

A vaccine mandate is strikingly unlike the workplace regulations that OSHA has typically imposed. A vaccination, after all, “cannot be undone at the end of the workday.” Contrary to the dissent’s contention, imposing a vaccine mandate on 84 million Americans in response to a worldwide pandemic is simply not “part of what the agency was built for.”

The minority, sharply opposed to the split ruling, had this to say:

“When we are wise, we know not to displace the judgments of experts, acting within the sphere Congress marked out and under Presidential control, to deal with emergency conditions. Today, we are not wise. 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. As disease and death continue to mount, this Court tells the agency that it cannot respond in the most effective way possible. Without legal basis, the Court usurps a decision that rightfully belongs to others. It undercuts the capacity of the responsible dissenting federal officials, acting well within the scope of their authority, to protect American workers from grave danger.”

Big private employers with vaccine mandates

Many large employers used the threat of an OSHA mandate as a foundation for their own self-imposed vaccine mandate. \Among some of the largest employers that require vaccinations or approved exemptions, according to a list compiled by CNET

  • Amtrak
  • AT&T
  • DoorDash
  • Facebook
  • Ford
  • General Electric
  • Google
  • IBM
  • Lyft
  • McDonald’s
  • Microsoft
  • NBCUniversal
  • Netflix
  • Salesforce
  • Southwest Airlines
  • Twitter
  • Tyson Foods
  • Uber
  • United Airlines
  • Walgreens
  • Walmart 

The court’s decision to nix the OSHA vaccine or testing requirements for large private employers does not affect the Biden administration’s order for federal employees, including members of the military or federal contractors, nor does it forbid employers from imposing their own requirements. The question remains whether they will continue to do so.

Planning travel? Here’s what you need to know

The Supreme Court’s decision does not prevent local governments from imposing them. Many of the nation’s tourism hot spots have done just that. Among them:

New Orleans: Anyone 5 or older must have proof of at least one vaccine shot — or a negative result from a COVID-19 test taken within the past 72 hours — to enter many indoor venues that appeal to tourists. In this city of food, that includes restaurants, bars, hotels and outdoor events of more than 500 people if total attendance is more than 50% of the outdoor venue’s capacity. Starting Feb. 1, the city will require proof of full vaccination for anyone 5 or older or a negative COVID-19 test taken within the past 72 hours.

New Orleans went into “modified Phase 3” this week, which also now requires masks in all indoor spaces outside the home.

Los Angeles: All customers served in the indoor part of a food or beverage establishment and other types of indoor venues must show proof of full vaccination before entry, including restaurants, bars, hotel ballrooms, gyms and fitness venues, movie theatres, sports arenas and museums.

The California Department of Public Health is requiring masks to be worn in all indoor public settings, regardless of vaccine status, until Feb. 15.  

Minneapolis: Starting Jan. 19, people will have to show proof of vaccination or a negative COVID-19 test to get into restaurants or events that serve food or drinks. On Jan. 26, the policy also applies to all ticketed events.

New York City: The city has some of the strictest requirements in the country for attending sporting events, theater performances, dining indoors, using a gym or entering a bar.

Children ages 5 to 11 are now required to have proof of vaccination for public indoor activities. They must show they have received at least one dose of a vaccine. Starting Jan. 29, children ages 5 to 11 must also show proof of full vaccination.

People aged 12 and older participating in public indoor activities are now required to show proof they have received two vaccine doses, except for those who have received one dose of the Johnson & Johnson vaccine.

Boston: Starting Saturday, the city requires proof of COVID-19 vaccination for indoor dining, fitness venues, theaters and arenas. Starting March 1, children 5 to 11 must show proof of one dose of vaccine. On May 1, children 5 to 11 must show proof of full vaccination. 

Philadelphia: “Philadelphia establishments that sell food or drink for consumption onsite will require that everyone who enters has completed their COVID vaccinations. The city is not requiring booster doses. This mandate will not be applied in K-12 and early childcare settings, hospitals, congregate care facilities, special population providers that serve food, residential or healthcare facilities, grocery stores, convenience stores, or other establishments that primarily sell food and drink for offsite use, or in Philadelphia International Airport, except in traditional seated restaurant or seated bar style locations.”

Chicago: With the new year, the city began requiring proof of vaccinations for people going to indoor dining, bars, fast food establishments, coffee shops, food courts, dining areas of grocery stores, banquet halls, and hotel ballrooms, indoor gyms and fitness venues, indoor entertainment and recreation venues where food or beverages are served — including, but not limited to, movie theaters, music and concert venues, live performance venues, sports arenas and performing arts theaters. Some businesses say they are seeing a drop in customers since the vaccine mandate began. 

Washington, D.C.: Starting Saturday, the District begins requiring proof of vaccination at gathering places where people will be required to show proof of at least one dose. Then on Feb. 15, patrons will be required to show proof of two doses. 

More than 400 colleges and universities require vaccines for students and staff who teach, learn, work in-person on campus.