Vaccine mandate upheld for health workers but not large companies

gorsuch-150x150What is good for geese is not for ganders, the U.S. Supreme Court has decided.

The justices ruled 5-4 that the Biden Administration may force health employers to require their staff to get vaccinated or lose important federal funds, but in a 6-3 vote they rejected a vaccine-or-test mandate for companies with more than 100 employees for their workers in close contact with others.

The high court majority, assailed by dissenting justices, sided with conservative Republican state officials’ legal challenges and ripped away an important, proven way to quell the worst public health crisis in a century — a pandemic that is slamming the U.S. health system and is on its way to killing at least 850,000 Americans and infecting more than 65 million of us in recent months.

As the justices in the minority scolded colleagues in their dissent, the New York Times reported:

“Underlying everything else in this dispute 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?”

The court majority deemed the coronavirus a part of life, not confined to the workplace, and said that occupational safety authorities would be overreaching their powers to deal with the disease with vaccine requirements, ignoring that workers who chose not to get the shots could be tested regularly, instead, likely at their own expense.

Reality vs. theory with virus effects

The majority argument also failed to account, critics noted, of the real-life damages caused in workplaces by the virus and how, like protective gear required for risky jobs, the vaccine protects American workers.

United Airlines, for example, reported that the highly contagious Omicron variant has slashed at the company’s capacity to operate travel schedules with normality as 3,000 of its 93,000 employees are out sick with the coronavirus. But the company, which took a strong corporate leadership role in requiring vaccination of its workforce, also noted this vital information in a staff memo from CEO Scott Kirby, as the Washington Post reported:

“[Kirby] said none of the 3,000 employees who have tested positive and are vaccinated are hospitalized. Since the policy went into effect, the hospitalization rate among fully vaccinated employees has been a hundredth of that of the general population of the United States, Kirby said. In addition, United has gone eight weeks without a coronavirus-related death among vaccinated employees.”

The administration plans, now upended by the high court, would have pushed 80 million workers at large employers to get vaccinated and 20 million staffers in health care to get shots. The health-worker vaccine requirements were endorsed by many leading industry groups and organizations, though a major advocacy organization for nursing homes opposed the mandates. Long-term care owners and operators argue they cannot keep their workers and that vaccine requirements will only drive away more of the underpaid, overworked, and highly stressed employees.

Many large employers have told news reporters that they would hold off on deciding on vaccine requirements for their employees until the court ruled.

But if justices in the majority thought they were resolving an important legal issue with their unsigned ruling, that likely is not the case. Had the administration vaccine requirements been upheld, they would have offered employers clarity and legal shields, experts say. Instead, companies face an array of competing interests. States, counties, and local governments across the country have different laws on the issue of job-related vaccination. Conservatives may use the court’s ruling, experts say, to launch a wave of new lawsuits, contesting requirements when companies put them in place and detail why. Employees also may sue employers who do not require shots, arguing this inaction creates liability for workers sickened or killed by the virus.

The court itself takes stringent protective measures

The high court’s swift ruling on the vaccine requirements follows an emergency hearing of consolidated legal challenges — a session that showed the justices themselves taking the very public health safeguards in their workplace that they said the administration could not force on large employers.

Seven of the justices wore face coverings to start the 3.5-hour session. Associate Justice Neil Gorsuch apparently made a point of declining to mask up, and his seat mate, a 67-year-old diabetic, participated remotely from her chambers. All the justices, many of whom are getting up in years, are vaccinated, court officials have said.

The emergency hearing, the Washington Post reported, occurred “in a building that has been closed to the public for nearly two years because of the pandemic. Only court staff, lawyers in the cases, credentialed reporters, and the justices’ law clerks are allowed to attend oral arguments, and all must be masked and possess negative coronavirus test results.”

Two of the lawyers arguing in the case did so by telephone, with an official noting only that one did so to respect court pandemic protocols and the other, the Washington Post reported, having tested positive for coronavirus.

The pandemic rages, crushing health care system

We are not done with the coronavirus and the huge trauma it has inflicted on us all.

Almost 150,000 Americans have been hospitalized daily on average during this winter surge, and daily average infections persist at the startling levels of more than 800,000. As the New York Times reported:

“Hospitalizations of people with the virus have increased more than 80% over the last two weeks, surpassing the previous record. Many Covid patients are critically ill, but that count includes other so-called incidental infections of people with minor symptoms who are hospitalized for reasons other than the virus. Case numbers have started to fall in recent days in Washington, D.C., one of the first places in the country to see a major Omicron surge. Hospitalizations in the Washington area remain at record levels. Deaths have started to rise nationally. More than 1,600 deaths are being announced most days, an increase of more than 30 % since late December.”

Please get tested, if appropriate, AND get vaccinated, AND get those booster shots. Officials are trying to make it as easy and convenient, as possible — and it’s free. If you’re uncertain about getting a booster or optimizing your mixing and matching of coronavirus shots, talk to your doctor. And, while you’re at it, ask about and get your annual flu shot.

As of Dec. 14, federal officials say that almost 209 million Americans eligible to do so have gotten fully vaccinated, with more than 78 million of us having received boosters. Those numbers — in the 60s by percentage of population — are increasing but aren’t enough to be protective as they might be for us all. It is disconcerting to see that, as schools struggle to stay open and hospitals fill with pediatric coronavirus cases, the push to get youngsters vaccinated has stalled.

The administration, in unacceptably tardy fashion, is cranking up efforts to increase testing capacity (with insurers also required to cover eight at-home tests per month), and experts have urged people to return to familiar safety practices during the Omicron surge: maintain distance, wear upgraded masks (the cloth versions may not be enough alone), and maybe skip unnecessary indoor gatherings with lots of people.

Let’s repeat the information until the hesitant, resistant, and, yes, justices grasp the reality: Vaccines matter in battling the pandemic. The most recent federal data from November, as the Omicron variant began to flare, showed that the unvaccinated had 10 times the risk of becoming infected with the disease and 20 times the risk of dying from the coronavirus. Yes, there are breakthrough infections. Yes, the nation may need to shift some of its approaches to battling the coronavirus. But the preponderance of patients who are hospitalized and dying are unvaccinated — this plague is preventable.

We cannot ignore disease and death and embrace nihilism and fatalism. We cannot allow anti-science fanatics to destroy centuries of progress with the viral spread of ever-wilder fantasies and conspiracies. Our health system, the envy of the world, cannot be a toy that will be smashed and ruined by selfish belligerence.

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