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Supreme Court halts COVID-19 vaccine rule
  • Updated

WASHINGTON — The Supreme Court has stopped a major push by the Biden administration to boost the nation's COVID-19 vaccination rate, a requirement that employees at large businesses get a vaccine or test regularly and wear a mask on the job.

At the same time, the court is allowing the administration to proceed with a vaccine mandate for most health care workers in the U.S. The court's orders Thursday came during a spike in coronavirus cases caused by the omicron variant.

The court's conservative majority concluded the administration overstepped its authority by seeking to impose the Occupational Safety and Health Administration's vaccine-or-test rule on U.S. businesses with at least 100 employees. More than 80 million people would have been affected and OSHA had estimated that the rule would save 6,500 lives and prevent 250,000 hospitalizations over six months.

"OSHA has never before imposed such a mandate. Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here," the conservatives wrote in an unsigned opinion.

In dissent, the court's three liberals argued that it was the court that was overreaching by substituting its judgment for that of health experts. "Acting outside of its competence and without legal basis, the Court displaces the judgments of the Government officials given the responsibility to respond to workplace health emergencies," Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor wrote in a joint dissent.

President Joe Biden said he was "disappointed that the Supreme Court has chosen to block common-sense life-saving requirements for employees at large businesses that were grounded squarely in both science and the law."

Biden called on businesses to institute their own vaccination requirements, noting that a third of Fortune 100 companies already have done so.

When crafting the OSHA rule, White House officials always anticipated legal challenges — and privately some harbored doubts that it could withstand them. The administration nonetheless still views the rule as a success at already driving millions of people to get vaccinated and encouraging private businesses to implement their own requirements that are unaffected by the legal challenge.

The OSHA regulation had initially been blocked by a federal appeals court in New Orleans, then allowed to take effect by a federal appellate panel in Cincinnati.

Both rules had been challenged by Republican-led states. In addition, business groups attacked the OSHA emergency regulation as too expensive and likely to cause workers to leave their jobs at a time when finding new employees already is difficult.

The National Retail Federation, the nation's largest retail trade group, called the Supreme Court's decision "a significant victory for employers."

The vaccine mandate that the court will allow to be enforced nationwide scraped by on a 5-4 vote, with Chief Justice John Roberts and Justice Brett Kavanaugh joining the liberals to form a majority. The mandate covers virtually all health care workers in the country, applying to providers that receive federal Medicare or Medicaid funding. It affects 10.4 million workers at 76,000 health care facilities as well as home health care providers. The rule has medical and religious exemptions.

Biden said that decision by the court "will save lives."

In an unsigned opinion, the court wrote: "The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it. At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have." It said the "latter principle governs" in the health care arena.

Justice Clarence Thomas wrote in dissent that the case was about whether the administration has the authority "to force healthcare workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo." He said the administration hadn't shown convincingly that Congress gave it that authority.

The court's decision came on the same day Biden announced that the government will double to 1 billion the rapid, at-home COVID-19 tests to be distributed free to Americans, along with “high-quality masks," as he highlighted his efforts to “surge” resources to help the country weather the spike in coronavirus cases.

Biden also announced that starting next week 1,000 military medical personnel will begin deploying across the country to help overwhelmed medical facilities ease staff shortages due to the highly transmissible omicron variant. Speaking at the White House, he said six additional military medical teams will be deployed to Michigan, New Jersey, New Mexico, New York, Ohio and Rhode Island.

Many facilities are struggling because their workers are in at-home quarantines due to the virus at the same time as a nationwide spike in COVID-19 cases. The new deployments will be on top of other federal medical personnel who have already been sent to states to help with acute shortages.

Biden acknowledged that, “I know we’re all frustrated as we enter this new year" as virus cases reach new heights. But he insisted that it remains “a pandemic of the unvaccinated.”

Both vaccinated and unvaccinated people test positive for the virus, but Biden noted medical figures showing that people are far less likely to suffer serious illness and death if they've received a shot: “What happens after that could not be more different.”

Biden's comments come as his administration's focus is shifting to easing disruptions from the spike in cases that is also contributing to grocery shortages and flight cancellations, rather than preventing the transmission of the virus.


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Ricketts focuses on ambitious investments along with tax relief
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Gov. Pete Ricketts on Thursday unveiled an ambitious program of investments in Nebraska's future, including major development and protection of natural resources along with workforce development while targeting substantial additional tax relief phased in over the next five years.

It was the final budget presentation of Ricketts' eight-year tenure as governor that will end next January and the spending changes were fueled by an infusion of federal pandemic recovery funding along with a healthy state budget surplus.

A huge share of the budget, already dictated by major new local property tax reductions triggered by previous action taken by the governor and the Legislature, pumps approximately $2 billion of state revenue into property tax relief during the 2021-2023 biennium.

The governor's proposals, presented to the Legislature in his final State of the State address to lawmakers, include fully funding a new $155 million state prison to replace the aging State Penitentiary in Lincoln, funding previously announced construction of a $500 million canal to secure the state's future supply of water flowing from the Lower Platte River in Colorado across the border into western Nebraska.

The budget plan also allocates $200 million in funding, including federal pandemic relief assistance, to the adventurously named STAR WARS fund, adopting water resource recommendations proposed by a legislative study committee headed by Speaker of the Legislature Mike Hilgers of Lincoln.

Those recommendations include proposed construction of a new 4,000-acre lake between Lincoln and Omaha.

Also included in a litany of new appropriations and projects is $100 million for shovel-ready economic development projects and $90 million for community colleges to help spur high-skill workforce development.

Ricketts includes a number of major tax reduction proposals in his ambitious package.

His plan would reduce the top state individual income tax rate by 1%, cutting the levy from 6.84% to 5.84% phased in over the next five years, while "achieving corporate tax parity" by reducing the 7.25% corporate rate to match the personal rate.

A reduction in the top individual income tax rate would impact more than 400,000 Nebraskans, he said.

Building on previous legislative action to phase in an exemption of Social Security income from the state income tax, the governor proposed completing the exemption in five years instead of the currently scheduled 10-year period.

Ricketts said his tax reduction proposals would "deliver an additional $612.8 million in tax relief to hard-working Nebraskans" by fiscal 2024-25.

The governor's 25-minute address was delivered in a more traditional setting than the empty galleries that greeted him during the height of the pandemic.

Ricketts arrived masked as he walked down the center aisle of the legislative chamber where he was greeted by senators, most of whom were unmasked. Ricketts removed his mask for the speech, then reattached it for his journey back down the aisle following his address.

"Through the years, the guiding light of my administration has remained the same: to grow Nebraska," the governor said in delivering his final State of the State address to the Legislature.

"And, despite weathering floods, fires and a global pandemic, we have done just that," he said.

"I was elected on the promise that I would bring tax relief to our state," Ricketts said. "And given our current financial situation, we must deliver."

Speaking of the COVID-19 pandemic that has dramatically impacted his final term as governor and demanded his focus, the governor said "we have kept moving forward."

And in a swipe at the continuing controversy over masking and vaccination mandates, Ricketts said: "Nebraskans don't need to be mandated to do the right thing. They just do it.

"Without lockdowns or mandates, businesses were able to stay open.

"Parents were able to return to work, and their children were able to return to school.

"Where authoritarian states are struggling, we are thriving," Ricketts said.

The governor saluted Sen. Lou Ann Linehan of Elkhorn, chairwoman of the Legislature's Revenue Committee, for her leadership in "ushering in a historic level of tax relief — relief that will deliver $2 billion to Nebraskans over the next two years."

Ricketts hailed economic development initiatives that are underway from North Omaha to North Platte, recognizing a number of those local leaders who attended his address in the legislative chamber.

The governor also expressed his ongoing anti-abortion commitment, suggesting that "Nebraska continues to serve as a beacon for life."

"We must also recognize all the doctors, nurses and health care professionals whose stalwart selflessness and excellent care has helped us weather this pandemic," Ricketts said. They, he said, are "health care heroes."

The governor pointed to his priorities for his final year of working with the Legislature and said they are "starting with tax relief."

But Ricketts also stressed his belief that senators need to "fully fund the replacement of the Nebraska State Penitentiary."

"Its walls are crumbling, and its infrastructure is aged beyond simple repair," Ricketts said. "For those wishing to pursue criminal justice reform, this should be a no-brainer."

A modern new prison would "give our inmates a better quality of life," he said, and "allow us to offer enhanced services and programming to prepare these men for life after time served."

Ricketts stressed that he is "not asking anyone to choose between supporting a modern State Penitentiary and pursuing policies that aim to reduce crime and recidivism," suggesting that "these solutions are not at odds and there is room for both."

His request for more than $500 million to assist "areas that experienced negative economic impacts from COVID-19" includes assistance for economic development projects in North Omaha and funding for beef processing supply chain issues in North Platte, Ricketts said.

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As omicron surges, here's how one Lincoln school hopes to get ahead of the curve
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It feels a bit like deja vu.

The rapid surge in COVID-19 cases and a growing staffing crisis are forcing school administrators in Lincoln to once again make tough decisions reminiscent of March 2020, back when the pandemic forced classrooms to close completely.

On Thursday, Lincoln Pius X High School announced it will institute a half-day schedule through Jan. 21 as the highly transmissible omicron variant spreads through the community.

Classes at Pius X will dismiss at noon and school days will alternate between students attending periods 1-4 and periods 5-8.

Teachers at Pius X are expected to work the full day to catch up on lesson plans and to help students in quarantine or those who have recently returned to school keep up with classmates.

The move comes as COVID-19 cases in Lincoln reach unprecedented levels. At Pius X — like other schools in the city — more students than ever are missing school due to positive tests or contact tracing. Teachers are also bearing the brunt, forced to cover classes for absent colleagues due to a lack of available substitutes.

And the situation is only expected to get worse, officials warn.

"Basically, it's just our attempt to really manage the increased absenteeism we're expecting based on the (Lincoln-Lancaster County) Health Department's forecast," said Pius X Chief Administrative Officer Tom Korta. "They have expressed that the middle of January is when we're going to see it peak. ... We didn't want to be left scrambling last minute, so this was just a way for us to be proactive."

So far this week, 45 students and four staff members at Pius X have reported positive tests, according to the school's coronavirus dashboard. While the school does not list numbers of quarantined students, Korta said they are much higher than in the past.

At Lincoln Public Schools, where case counts, too, are surging, officials are bracing for the possibility that individual classrooms or schools may be forced to close in the coming weeks due to staff shortages.

Eric Weber, associate superintendent of human resources, said there is no one metric the district uses when determining to close a classroom or school. But when over 10% of staff or students are absent, that's when officials grow concerned.

If a classroom or school closes, students affected would attend classes remotely via Zoom, a policy that's been in place since last school year.

District officials have briefed building administrators on preparing for that contingency and LPS was planning a "practice run" for teachers this week so staff and students are "not behind the eight ball" if they have to go remote, Weber said.

While officials hope schools will not have to resort to that, LPS was forced to close two special-education programs this week because of staffing shortages — a microcosm of the greater workforce crisis especially plaguing schools since the second semester began.

There were 334 LPS staff members in quarantine as of Thursday and 87 have tested positive. But those figures could grow, officials said, merely because of the vast number of submissions being entered into the district's COVID reporting system. That in turn is creating a backlog slowing down the numbers being fed into LPS' online coronavirus dashboard.

And there are not nearly enough substitutes filling those vacancies, making it challenging for schools to staff classrooms, kitchens, buses and more.

A startling statistic paints the picture well: On Wednesday, nearly 40% of certificated staff vacancies in LPS went unfilled. That means teachers who are at work have to drop time they would typically use to plan lessons to cover classes for their absent colleagues.

"They are covering left and right," said Deb Rasmussen, president of the Lincoln Education Association, the district's teachers union. "It's not good for kids."

Just this week, a record 782 students have tested positive at LPS, and over 2,400 — or over 5% of the student body — are in quarantine.

Matthew Hecker, chief administrative officer for schools in the Catholic Diocese of Lincoln, said principals of Lincoln's Catholic schools were to meet Thursday to discuss COVID mitigation strategies.

Unlike at LPS, where masks are required for staff and students, the diocese — including Pius X — moved to an optional face-covering framework when the health department dropped its countywide mask mandate last month.

But some individual Catholic schools in Lincoln have moved to mask mandates to prevent spread, Hecker said.

Closing classrooms and schools because of staffing issues or surging case numbers is on the table, Hecker said, but those decisions would be made on a school-by-school basis.

"At this point, you have to have all the tools in the tool chest, so to speak," he said.

At Pius X, officials will decide whether to extend its half-day format beyond next week in consultation with the health department, Korta said, and hopes it will prevent the need to resort to more drastic measures.

"We're doing our best to keep school in session to prevent that March 2020 phenomenon," he said.


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