U.S. Supreme Court Delivers Mixed Rulings for Vaccine Mandates

Yesterday, the U.S. Supreme Court delivered mixed rulings for the Biden Administration’s ability to require a vaccine or testing mandate for employers.

In National Federation of Independent Business v. Department of Labor, the Supreme Court stayed implementation of the Occupational Safety and Health Administration’s (“OSHA”) Emergency Temporary Standard (“ETS”) which required employers with 100 or more employees to adopt a vaccination or testing requirement for all employees. In Biden v. Missouri, the Supreme Court allowed the Administration to implement a vaccination rule by the Centers for Medicare & Medicaid Services (“CMS”). Both rulings are discussed in more detail below.

The OSHA ETS Ruling

As most employers are aware, the OSHA ETS required that employers with 100 or more employees implement a vaccination or testing mandate for all employees. The requirement went into effect on January 10, 2021. In its 6-3 majority ruling, the Supreme Court stayed further implementation of the ETS pending further review by the Sixth Circuit Court of Appeals. The ETS would have covered approximately 84 million employees. The Court found that the ETS “operate[d] as a blunt instrument” that “dr[ew] no distinctions based on industry or risk of exposure to COVID-19.” They drew a distinction between the workplace safety standards that OSHA was empowered to set, and the broad public health measures that the mandate addressed. “Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most.” (emphasis original). “Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

While a blow to the Administration, the ruling seemed to indicate a path forward for the Administration, albeit much narrower. The Court found that OSHA could regulate “occupation-specific risks” related to COVID-19.

Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID-19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments.

The ruling stayed implementation of the ETS, while the decision goes back to the Sixth Circuit Court of Appeals for a decision on the permanent injunction filed by various businesses and states. So, while it is still possible that the ETS could be revived, it is unlikely.

The CMS Ruling

The Court went a different direction in its ruling on the CMS rule. Unlike the OSHA ETS rule, the CMS rule requires that virtually all health care workers at facilities that participate in Medicaid or Medicare programs be fully vaccinated against COVID-19, subject to accommodations for medical issues or sincerely held religious beliefs. The CMS rule did not contain a testing and face covering option. In its 5-4 majority ruling, the Court found that Congress had authorized the Secretary of Health and Human Services to “impose conditions on the receipt of Medicaid and Medicare funds that the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.” The CMS rule thus

fits neatly within the language of the statute. After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm. It would be the very opposite of efficient and effective administration for a facility that is supposed to make people well to make them sick with COVID-19.

The Court allowed proceedings to continue in the lower courts, and as with the OSHA ETS ruling, it is possible that the CMS rule could be blocked at a later time, though unlikely.

If you have additional questions surrounding these rulings, or testing or vaccine requirements generally, please contact the employment law professionals at the Dickinson Law Firm.