Client Alert

Supreme Court Nixes OSHA Vaccine-Or-Test Mandate But Okays Healthcare Worker Vaccine Mandate

13 Jan 2022

The Supreme Court has blocked a Biden administration rule relating to COVID-19 vaccine requirements, while allowing another to take effect. The now-blocked rule, issued by the Occupational Safety and Health Administration (OSHA), was a “vaccine or test” mandate: it applied to employers with 100+ workers, and it would have required employees to either be fully vaccinated against COVID-19 or be tested weekly and wear masks at work. The now-enforceable rule, issued by the Department of Health and Human Services (HHS), is a vaccine mandate: it applies to healthcare workers at facilities participating in Medicare and Medicaid, and it requires them to be fully vaccinated against COVID-19.

On January 13, 2022, in per curiam opinions (meaning that no single Justice is listed as the author), the Court stayed OSHA’s vaccine-or-test mandate by a 6-3 vote but lifted lower-court injunctions on HHS’s healthcare-worker vaccine mandate by a 5-4 vote. The opinions came less than a week after the Court heard oral argument in the cases on January 7.

In the OSHA vaccine-or-test mandate case, National Federation of Independent Business v. Department of Labor (No. 21A244), the Court held that challengers to the rule are likely to succeed on the merits because OSHA’s authority extends only to “workplace safety standards, not broad public health measures.” The Court concluded “OSHA’s indiscriminate approach” did not “account for this crucial distinction—between occupational risk and risk more generally.” Justice Gorsuch, joined by Justices Thomas and Alito, wrote a concurring opinion emphasizing that OSHA’s rule failed under the “major questions doctrine,” which requires Congress to speak clearly when authorizing administrative agency action of vast economic and political significance. Justice Breyer, Justice Sotomayor, and Justice Kagan issued a joint dissent. In their view, the Court’s decision “undercuts the capacity of the responsible federal officials, acting well within the scope of their authority, to protect American workers from grave danger.”

In the HHS healthcare-worker vaccine mandate, Biden v. Missouri (No. 21A240), the Court held that the “rule falls within the authorities that Congress has conferred upon” the agency. While noting that “[t]he challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it,” the Court reasoned that “unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.” Justice Thomas (joined by Justices Alito, Gorsuch, and Barrett) dissented, expressing doubt that the statutes that the agency invoked create “broad vaccine-mandating authority.” Justice Alito (joined by Justices Thomas, Gorsuch, and Barrett) issued a separate dissenting opinion, stating that the agency improperly bypassed notice-and-comment procedures in promulgating the rule.

These cases had been fast-tracked to the Supreme Court. Shortly after the rules were announced, challenges poured in from States, businesses, and others. The Fifth Circuit initially stayed the OSHA vaccine-or-test mandate, but then the Sixth Circuit reinstated the mandate after the cases were transferred there. And in the HHS healthcare-worker vaccine mandate case, a federal district court enjoined the mandate. Both sets of cases then came to the Court in mid-December as emergency applications for stays of those lower-court orders (rather than as ordinary petitions for certiorari). That put the cases on the Court’s so-called “shadow docket” of emergency applications, which has proliferated in recent years. “Shadow docket” cases often call on the Court to decide important issues without full briefing and argument. In these COVID vaccine cases, however, the Court took the unusual step of holding oral argument on an expedited basis. And it issued its decisions less than a month after the applications were filed—far quicker than the months-long process for deciding ordinary cases that come as petitions for certiorari.

Significance

What does this mean for employers? Employers should revisit their COVID-19 policies and procedures in light of the Supreme Court’s ruling. Without the OSHA vaccine-or-test mandate in place and Executive Order 14042 still currently in legal limbo, most employers will not have to comply with federal COVID-19 safety requirements, other than healthcare providers covered by the HHS rule and federal contractors with employees working onsite at government facilities. During the Supreme Court argument, the Biden administration’s lawyer noted that HHS had issued guidance giving regulated entities time to come into compliance and emphasized that the agency “has always exercised enforcement discretion,” taking into account the “access to care issues” raised by the rule’s challengers, such as staffing shortages.

At bottom, these cases were about the ability of the federal government to require certain policies. Without a federal mandate, businesses will have to navigate the patchwork of state and local COVID-19 requirements. On the one hand, a number of states have issued their own COVID-19 safety protocols. For example, last month New York City issued a requirement that all employees working onsite in New York City had to be vaccinated, subject to limited exceptions. A number of other jurisdictions, such as Alabama, Florida, Tennessee, and Texas, have gone the other way, passing laws prohibiting employers from requiring employees to get vaccinated. Businesses should be mindful of these laws as they consider their COVID-19 strategies and protocols going forward.

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