JUDY WOODRUFF: To look further at the split decision on vaccine mandates at the Supreme Court
and how the Biden administration may respond, John Yang picks up our coverage.
JOHN YANG: Judy, today's opinions come less than a week after the justices heard oral arguments
in these emergency cases, as well as three days after parts of OSHA's rule took effect.
First, let's look at what the justices said with Marcia Coyle,
chief Washington correspondent for "The National Law Journal."
Marcia, let me start by reading some of the opinions.
This first part is from the majority opinion, written by -- or a concurring
opinion written by Justice Neil Gorsuch, joined by Clarence Thomas and Samuel Alito.
He says: "The question before us is not how to respond to the pandemic,
but who holds the power to do so. The answer is clear.
Under the law as it stands today, that power rests will with the states and Congress, not OSHA."
So that was the -- supporting the majority view.
On the other side, Justices Breyer, Sotomayor and Kagan dissented. They say that: "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."
This is on the OSHA rule, which affects far more people than the health care workers rule.
What are the justices saying here? What are both sides saying here?
MARCIA COYLE, "The National Law Journal": I think what the majority, which -- were six conservative
justices, were saying here is that OSHA does have the authority to regulate workplace dangers and
hazards, but what it doesn't have authority to do is to regulate more broadly the public health.
The majority felt that, when you put a mandate on some 80 million
workers who are chosen simply because they work for employers who have 100 or more workers,
in that case, you're really regulating more broadly for the public health than
you are for the grave danger that a specific workplace may have.
Justice Breyer led the three dissenters, the more liberal members on the court.
And he said that he felt that this mandate for workers really fit like a T. to OSHA's
authority to regulate grave dangers, new hazards in the workplace.
But he also said there was a very important underlying question, and that is, who should
decide? Should it be the agency that has the expertise and has been authorized by Congress
and is accountable to Congress and the executive branch, or should it be a court or courts who do
not have the expertise to decide what workers' protection might be and whether they need it?
JOHN YANG: And yet, for the health care workers' mandate,
they came down on the other side. What was the difference?
MARCIA COYLE: The court generally felt -- at least, as we see in this order, there
was a majority that felt the mandate here fit more closely the statutory authority
of the secretary of health and human services, who is charged
with protecting the health and safety of patients in Medicare and Medicaid facilities.
And, as the majority pointed out,
what -- obviously, the pandemic and the infection that the virus is causing
is something that affects the health and safety of the patients and the workers in those facilities.
JOHN YANG: And on the OSHA rule, the majority also said that they weren't ruling out
any kind of regulation. They were just ruling out sort of a broad-blanket regulation.
MARCIA COYLE: That's correct.
And, again, as the oral arguments proceeded, we saw how the court began to weed through the kinds
of workplaces where you might have a greater hazard from the virus than others. And I think
that came out in the order today, in which they're saying, OK, OSHA you're going to have to show
a tighter fit between the virus hazard and the particular workplace before you regulate it.
And I will also say, John, on the health care workers vaccine mandate,
that there -- that was a 5-4 decision, and Justices -- well, Justice Kavanaugh and Chief
Justice Roberts joined with the court's three liberals to make the majority here in allowing
the health care vaccine mandate to go forward, at least as the appeals proceed in the lower courts.
And the dissenters there felt that the secretary did not have the authority,
and that this was the kind of case that has great economic and public significance, which requires
a clear statement by Congress. And it's also an area that has traditionally been within
the realm of state power. And they just didn't see that the secretary had the authority here.
JOHN YANG: Marcia Coyle of "The National Law Journal," thank you very much.
MARCIA COYLE: My pleasure, John.
JOHN YANG: The OSHA requirement that big employers either make
sure their workers are vaccinated or get tested weekly which has now been
blocked by the court, was a key part of the administration's pandemic response.
Marty Walsh, who is the secretary of labor, whose department oversees OSHA,
Mr. Secretary, thanks so much for joining us.
The OSHA estimated that this regulation would have covered 84 million
American workers. In your statement this evening, in response to the Supreme Court
decision, you urged all employers to put in place similar requirements on their own.
But what can you do? What can the Labor Department do to try to get employers to
do that, that would have anywhere near the same coverage that the OSHA regulation would have had?
MARTY WALSH, U.S. Secretary of Labor: Well,
first of all, this is a very disappointing ruling by the Supreme Court today.
And we are encouraging now companies to be able to do what we tried to do with this rule.
And, quite honestly, part of doing this is to make sure workplaces are safe around America,
making sure workers who are unvaccinated are
tested on a weekly basis, making sure workers that are unvaccinated
that are working with people vaccinated are getting tested on a weekly basis as well.
So it's really unfortunate. We're going to help any company in the country that wants to do this.
You know, the majority of people in America are vaccinated already, but we're trying to get to
the rest of the people that either aren't vaccinated or don't want to be vaccinated.
JOHN YANG: And do you think you can do that? Do you think you can add on to these numbers?
The people who have already been vaccinated,
do you think is it -- have we hit the ceiling on that, do you think?
MARTY WALSH: Well, I don't know if we have hit the ceiling, but it's going to be very challenging.
I think a lot of people, what we wanted to do here -- this was not a mandate. And I think
some people said this is a vaccine mandate. It wasn't. It was a vaccination,
and, if you refused to get vaccinated, you would be tested weekly, and you
would be wearing a mask inside of work to make people feel safe.
And we are going to do -- I'm going to do everything we can and we're going to do
everything we can as an administration to continue to encourage people to be vaccinated.
If you look at the numbers, you look at the people that -- in the more recent days
that are contracting the Omicron variant, they're not -- they're getting sick, but
they're not being hospitalized, and they're not -- a lot of people haven't died in large numbers.
If you look at people that are unvaccinated, right, you are seeing people get sick,
hospitalization. Part of this as well is keeping hospitals,
emergency rooms available for people that have other illnesses that need it.
What we don't want to see is go back to the day, different periods of time here during the virus,
that emergency rooms were overrun and hospitals had to stop elective procedures.
JOHN YANG: You know, the court said today that this was not -- this was -- while it was a threat
in the workplace, in many workplaces, it was not an occupational hazard.
What's your response to that?
MARTY WALSH:
Well, certainly, the job of OSHA is to make sure that workplaces are protected and safe.
And again, that's the ruling the court has made. So, unfortunately, we have to live with that. But
I do feel that what we were doing, making sure that workplaces all across America are safe. And
the sad thing here is, many people, medical experts, most medical experts and legal experts,
said that, first of all, it was the right thing to do for the health and safety of workers,
and the legal experts said we have every legal right to do that.
JOHN YANG:
You know, the court also didn't shut the door entirely on OSHA regulations on this topic.
Let me read you a part of the majority decision. They said that: "Where the virus
poses a special danger because of the particular features of an employee's job or workplace,
targeted regulations are plainly permissible. So too could OSHA
regulate risks associated with working in particularly crowded or cramped environments."
Will OSHA go back and try to look at workplaces and have more targeted regulations?
MARTY WALSH: Well, certainly, we're going to explore -- explore what the Supreme Court said.
You know, this ruling came down around 4:00 today. And we have been -- our attorneys in
OSHA have been looking at it. So we're looking to see where -- I was very pleased to see that part
of the ruling, to know that we can continue to do what we need to do here at OSHA to support people.
I was also happy to see that we're still going to be paying in the Medicare section of this. So, at
the end of the day, we're looking -- I'm looking at those two issues as positive, but, overall, a
very disappointing ruling, very disappointing day for the safety and well-being of American workers.
We have lost over 800,000 Americans
due to COVID-19. We have lost over 5.2 or 5.3 million people in the world.
This is a once-in-a-generation pandemic. And people are getting sick still.
And we should be doing everything to protect workers, not make it harder to protect them.
JOHN YANG: Do you worry that this is going to make it -- make employers
more reluctant to put requirements in place on their own?
MARTY WALSH: No, I think most employers in this country want
to make sure their employees are safe. They want to make sure their employees
get a chance to not get sick and go home at the end of the day.
And I'm hopeful that we will be able to work with -- we have worked with plenty of employers
in this country. And we're going to continue to work with employers in
this country to make sure the workplaces are safe.
JOHN YANG: Labor Secretary Marty Walsh, thank you very much.
MARTY WALSH: Thank you.