WASHINGTON – The Supreme Court’s rejection Thursday of a federal vaccination requirement for most workers stripped away President Joe Biden’s most effective tool in increasing vaccination rates, which experts say are nowhere close to what’s needed for a return to normalcy.
Biden has made vaccines the centerpiece of his COVID-19 strategy, so what does the White House do next?
Biden himself suggested it is now up to states and businesses to ramp up the nation’s vaccination rates, while he remains on the sidelines as cheerleader in chief.
“The court has ruled that my administration cannot use the authority granted to it by Congress to require this measure,” Biden said in a statement, “but that does not stop me from using my voice as president to advocate for employers to do the right thing to protect Americans’ health and economy.”
Others, however, say the president does have more options, including requiring vaccinations for domestic air travel and crafting a more narrowly targeted workplace rule.
Labor Department Secretary Marty Walsh said in a statement the agency “will be evaluating all options to ensure workers are protected from this deadly virus.”
Here’s a look at the challenges and choices ahead.
First of all, what’s the problem?
The Biden administration’s vaccine requirement, implemented by the Occupational Safety and Health Administration and rolled out in November, was aimed at preventing workers from spreading infections among themselves and customers. OSHA is the federal agency charged with regulating workplace safety.
Under the rule, workers were supposed to get vaccinated or be tested at least weekly for COVID-19 starting Feb. 9. As of Monday, unvaccinated workers were required to wear masks.
The Labor Department estimated the rule would have saved thousands of lives and prevented more than 250,000 hospitalizations during the six months after implementation.
“Workplace transmission has been a major factor in the spread of COVID-19,” said Dr. Gerald E. Harmon, president of the American Medical Association, which supported the requirement.
The rule also would’ve boosted the nationwide vaccination rate, which has been stuck at around 60% of the U.S. population.
At least 90% of the population needs to be either vaccinated or have some immunity from a prior infection to minimize the effects of COVID-19 on daily life, according to three experts who were on Biden’s COVID-19 transition team. They outlined that estimate and the importance of mandates in a paper published this month in the Journal of American Medicine.
“Few countries have achieved such levels of coverage of any vaccine without vaccination requirements,” they wrote.
Biden has required federal employees to get vaccinated. The Supreme Court on Thursday upheld his vaccination mandate for workers at health care facilities that serve Medicare and Medicaid patients. Legal challenges to Biden’s requirement for federal contractors are still making their way through the courts.
But the OSHA rule, which would have applied to businesses with 100 workers or more, would have ensured two-thirds of the nation’s employees were covered.
It also would have applied to state and local government workers in 26 states, including teachers and school staff.
Could Congress step in?
The Supreme Court said Congress hasn’t given OSHA the broad authority needed to impose such a sweeping requirement.
So could the Democrat-controlled Congress do that now?
As the court noted, a majority of the Senate voted against the regulation in December. In fact, two Democrats – Sens. Joe Manchin of West Virginia and Jon Tester of Montana –joined with all Republicans last month to reject the rule.
“I have long said we should incentivize, not penalize, private employers whose responsibility it is to protect their employees from COVID-19,” Manchin said in explaining his vote.
Can OSHA try again?
Georgetown University law professor David Vladeck, who supported the OSHA rule, said the agency is likely to seek another avenue.
“The risks in the workplace are far greater for most people than anywhere else,” he said. “So, I don’t see OSHA just simply folding up its tent and saying, `never mind.’”
David Michaels, an epidemiologist at George Washington University School of Public Health who led OSHA during the Obama administration, said the agency could rewrite the rule to narrow its focus to workplaces with the greatest risk of transmission.
Such a requirement could apply to sites where employers are together all day, particularly in structures with poor ventilation. In addition to factories with assembly lines, a more narrowly targeted requirement could also apply to workplaces where there is contact with customers – such as retail establishments – and to businesses where remote work is not possible, Michaels said.
“If an employer told office workers in a crowded office that they must come and work in person, that would be a high-risk workplace as well,” he added.
The court’s ruling does suggest some leeway for a narrower approach.
“Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible,” the court said in its unsigned opinion.
The court cited regulating researchers who work with the COVID-19 virus, and said the government could also target workplaces with “particularly crowded or cramped environments.”
The head of the AFL-CIO, which supported the struck-down requirement, said the agency remains responsible for providing safe working conditions – and that goes beyond vaccinations.
AFL-CIO President Liz Shuler said OSHA should issue a new emergency standard to ensure at-risk workers are provided layers of protections, including improved ventilation, distancing, masking and paid leave.
Walsh, the Labor secretary, said OSHA “will do everything in its existing authority to hold businesses accountable for protecting workers.”
Can Biden try other types of vaccination rules?
Lawrence Gostin, faculty director of the O’Neill Institute for National and Global Health Law and Georgetown University Law Center, said Biden should pivot to areas where he has clear constitutional authority.
The lowest hanging fruit, he said, would be to require vaccinations for domestic flights and other forms of public, interstate travel.
“The president clearly has the power to prevent the spread of infectious diseases across state lines,” he said. “Anyone who wants to travel to see family or friends or to vacation would have to be vaccinated, and that would boost the vaccination rate.”
Still, Gostin called the Supreme Court’s decision a “dagger in the heart of our COVID vaccination progress.”
Dr. Anthony Fauci, Biden’s top science adviser on the pandemic, told MSNBC last month that vaccination requirements for domestic flights should be seriously considered to boost vaccination rates.
The week before, however, Biden told ABC News that his team told him requiring vaccines to fly domestically is “not necessary.”
Thursday’s high court decision may change the White House team’s calculus.
Can states step in?
On Thursday, Biden said states and individual businesses must now do what the court said the federal government cannot.
But 27 states were part of the legal challenge to the workplace requirement. Some Republican-led states have also moved to block schools and businesses from imposing their own vaccination rules.
That’s one of the challenges faced by companies wanting to require vaccines, said Dr. Jeff Levin-Scherz, an assistant professor at Harvard School of Public Health who also works for the Willis Towers Watson advisory company.
More than half (57%) of businesses responding to a Willis Towers Watson survey in November either already required or planned to require COVID-19 vaccinations. But that included 32% who said they would do so only if the OSHA rule took effect. The rule would have superseded any state or local restrictions on vaccination requirements.
Still, Levin-Scherz said many businesses will move ahead in states that allow it.
“For employers, unvaccinated employees do represent a business risk,” he said. Unvaccinated workers are more likely to bring COVID into the workplace, more likely to get sick from it and more likely to be hospitalized – incurring large medical bills for the business’ health insurer to pay.
What about the bully pulpit?
Biden called on business leaders “to immediately join those who have already stepped up” and instituted vaccination requirements.
Georges Benjamin, executive director of the American Public Health Association, said Biden needs to send the message that “even though the court says you don’t have to do it, that doesn’t mean you can’t do it.”
Unions should demand that workplaces require vaccinations, he said, and businesses that have imposed mandates should “serve as exemplars for their colleagues.”
“United Airlines has a compelling story about how these mandates saved their workforce,” Benjamin said.
While about 3,000 United Airlines employees are currently positive for COVID-19, the situation would be much worse without vaccines, United CEO Scott Kirby told employees in a memo Tuesday.
Since instituting a vaccination requirement, employees’ hospitalization rate has been 100 times lower than the national rate, Kirby said. There have been no COVID-related deaths among employees in the past eight weeks, compared to an average of more than one a week before the requirement.
“While I know that some people still disagree with our policy,” Kirby wrote, “United is proving that requiring the vaccine is the right thing to do because it saves lives.”
Maureen Groppe has covered Washington for nearly three decades and is now a White House correspondent for USA TODAY. Follow her on Twitter @mgroppe.
This article originally appeared on USA TODAY: Supreme Court vaccine ruling: What can Biden do next to combat COVID?