Story at a glance

  • The Supreme Court is hearing arguments this week that challenge President Biden’s federal COVID-19 vaccine mandate for businesses that employ over 100 people.
  • One of the attorneys arguing against the mandate is Ohio’s solicitor general, Ben Flowers.
  • Flowers tested positive for COVID-19 after taking a required PCR test ahead of oral arguments on Friday.

The Supreme Court is hearing a pivotal case that will determine whether the federal government has the legal authority to require businesses to mandate a COVID-19 vaccine for their employees, and one of the attorneys arguing against that mandate caught the virus himself. 

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Ben Flowers, Ohio’s solicitor general, participated in oral arguments remotely on Friday after testing positive for COVID-19, though he has been vaccinated and received a booster shot, according to NBC News. 

The Supreme Court required all participants in Friday's oral arguments to take a COVID-19 PCR test ahead of time, which is when Flowers realized he had tested positive for the virus. Flowers wasn’t the only one participating over the phone; Louisiana Solicitor General Liz Murrill also participated remotely but her office didn’t specify why, telling Reuters it was, “in accordance with COVID protocols.” 

The Supreme Court is hearing arguments for two policies implemented by President Joe Biden’s administration, one of which is the requirement that businesses with 100 or more employees mandate a COVID-19 vaccine or require a negative COVID-19 test once a week for those who remain unvaccinated. 


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The second policy at stake is a requirement that workers at hospitals and other healthcare facilities that participate in federally run Medicare and Medicaid programs be vaccinated against COVID-19. 

The Occupational Safety and Health Administration (OSHA) tasked with enforcing the policies said that failure to adhere to the rules could result in fines of up to $10,000 and imprisonment for not more than six months, or both.  

Both of those policies came under immediate criticism after they were unveiled, with CNBC reporting that The National Retail Federation (NRF) and the Retail Industry Leaders Association said the mandate would be too burdensome for their business.  

“Nevertheless, the Biden administration has chosen to declare an ‘emergency’ and impose burdensome new requirements on retailers during the crucial holiday shopping season,” said David French, senior vice president of government relations for NRF. 

Those arguments and more are among what Flowers and attorneys from 26 other states wrote in a brief that COVID-19, “is not (for most employees) an occupational danger that OSHA may regulate,” and, “does not present a ‘grave’ danger for many employees subject to the mandate,” according to NBC. 

The Supreme Court case comes as the U.S. and nations across the world are experiencing a new surge of COVID-19 cases, driven by the highly transmissible omicron variant. The U.S. reported its highest number of COVID-19 cases this week since the pandemic began back in 2020, with John Hopkins University recording over 1 million new cases. 


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Published on Jan 07, 2022