OSHA drops rules for businesses after losing Supreme Court case

US President Joe Biden speaks about the approval of a Covid-19 vaccine for children ages 5 to 11 in the South Court Auditorium on the White House campus November 3, 2021 in Washington, DC.

Drew Angerer | Getty Images

The Biden administration is officially withdrawing its vaccination and testing mandate for businesses after the Supreme Court blocked the demands earlier this month.

The Occupational Safety and Health Administration will lift the rule for businesses that went into effect on Wednesday, Jan. 26, the agency said in a statement posted on its website on Tuesday. The Supreme Court’s conservative majority ruled in a 6-3 decision that OSHA had overstepped its authority.

“While Congress undeniably gave OSHA the power to regulate occupational hazards, it did not give that agency the authority to regulate public health more broadly,” the court wrote in an unsigned opinion.

The Biden administration is ending the legal battle over the mandate – at least for now. OSHA will ask the U.S. Court of Appeals for the 6th Circuit to dismiss all cases related to the mandate, according to a Department of Labor spokesman. The administration has faced dozens of lawsuits from Republican-led states, private businesses, religious groups and national trade associations. The Sixth Circuit has jurisdiction over these cases.

OSHA has issued a mandate under its emergency powers that the agency can use to cut back on the normal rule-making process if the secretary of labor decides workers are in serious danger. The agency’s emergency rules also serve as proposals for permanent rules. OSHA has left open the possibility that in the future it may try to finalize permanent vaccination and testing rules.

“OSHA is evaluating the history and development of the pandemic. OSHA has not made any decisions at this time on when and whether it will finalize vaccination and testing regulations,” a Labor Department spokesman said.

However, it is unlikely that the vaccine mandate and testing would be better within the agency’s normal process. The conservative majority in the Supreme Court was most concerned about the scope of the mandate, not how it was issued.

Under the non-existent rule, businesses with 100 or more employees were required to ensure that their employees are fully vaccinated or tested negative for Covid weekly in order to go to work. It would cover about 80 million private sector workers.

The Supreme Court decision was a major blow to President Joe Biden’s strategy to control the spread of the virus. Biden urged businesses to voluntarily comply with the demands.

Labor Secretary Marty Walsh pledged that OSHA will use its existing powers to protect workers from Covid. OSHA still has general authority to investigate and penalize employers if they do not provide a safe workplace.

The U.S. averages over 731,000 new infections per day over a seven-day period, up 4% from last week, according to CNBC’s data analysis from Johns Hopkins University. While new infections are on a plateau, they have stalled at significantly higher levels than past waves.

OSHA on Tuesday said it would reallocate resources to focus on creating a permanent Covid safety standard for healthcare workers. The agency issued temporary emergency rules for the industry last summer, but canceled them in December after missing a deadline to create a permanent safety standard.

The Covid health safety standard required most establishments to provide personal protective equipment, install physical barriers in certain areas, clean and disinfect the workplace, and maintain proper ventilation, among a range of other measures.

The AFL-CIO and National Nurses United, among other union groups, have petitioned a federal appeals court to force OSHA to restore safety rules for healthcare workers. OSHA, in a lawsuit, said it could not complete a permanent rule for medical professionals because its resources were tied to preparing a business mandate.

Hospitals across the US are battling an influx of patients infected with the highly contagious omicron variant. There are about 155,000 Covid patients in US hospitals, averaging seven days, higher than peak levels last winter but down 2.4% from a week ago, according to data from the US Department of Health and Human Services.

Many hospitals are facing staffing shortages as healthcare workers are forced to call in patients after being infected with the omicron variant.

“Many places around the country are getting to the point where even their support staff are getting sick,” Dr. Gillian Schmitz, president of the American College of Emergency Physicians, told CNBC earlier this month. “Practically the entire country is now feeling this spike in cases that is affecting staffing.”

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