retail news in context, analysis with attitude

The US Supreme Court ruled yesterday that the Biden administration and the Occupational Safety and Health Administration (OSHA) do not have the legal authority to mandate that private companies with 100 or more employees must have vaccine-or-test systems in place.  However, the Court did allow the government to require vaccinations for most health-care workers at the facilities that receive Medicaid and Medicare funds.

The Washington Post writes that "essentially, they found Congress had given federal agencies the power to impose the requirement on health-care workers at facilities receiving federal funds, but that there was no authority to impose sweeping requirements in workplaces across the nation."

According to the Post, "Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh were the only members of the court in the majority of both orders … 

Liberal Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan would have allowed the workplace requirements. Conservative Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Amy Coney Barrett objected to the health-care worker requirements."

From the Wall Street Journal story:

"The private-employer requirements, for businesses with 100 or more employees, would have applied to an estimated 84 million workers … The Occupational Safety and Health Administration issued the private-employer rules in November. Several parts of the regulations, including a requirement for mask-wearing in the workplace by unvaccinated individuals, were set to take effect this week, though the testing requirements weren’t scheduled to be enforced until next month."

Leslie G. Sarasin, president-CEO of FMI – The Food Industry Association, released the following statement in response to the ruling:

"“We are pleased the Supreme Court recognized the challenges OSHA’s rule would have imposed on food retailers and manufacturers, our employees and, ultimately, American consumers. The Court’s decision today to pause OSHA’s vaccine and testing mandate for private businesses will help ensure the food industry is able to continue meeting our customers’ needs as efficiently and effectively as possible amid the ongoing supply chain and labor disruptions.

“FMI and our member companies remain committed to working with OSHA, the CDC, and the White House to encourage and facilitate vaccinations among our employees and communities while preserving our members’ ability to provide their customers with the foods and products they need to keep their families fed and safe in the new year."

Greg Ferrara, president-CEO of the National Grocers Association (NGA), said, "Independent grocers remain focused on doing what they have done since day one of the pandemic, providing their communities with access to food, essential products and other vital services. The ruling is a great relief for our industry as it staves off a burdensome mandate that would have created further disruptions and impaired our members’ ability to properly serve the needs of their communities."

The Washington Post writes that "the Supreme Court’s decision that large companies do not have to force workers to get coronavirus shots or tests leaves employers facing a patchwork of clashing state policies over their role in protecting their workforces from the surging pandemic … The decision by the court’s conservative majority was a relief for some firms that had regarded the federal rule as overreaching and burdensome … Other employers said that, with an ideologically divided workforce, they were disappointed to be deprived of a convenient justification for requiring coronavirus shots or weekly tests."

KC's View:

No surprise here.

I just hope that when the history of this is written, the unwillingness of some folks to accept the idea of vaccine mandates won't be pointed to as the reason we were not able to make the progress against the Covid pandemic that we should be able to, and that we need to achieve.