January 14, 2022
Elizabeth S. Muyskens
Member, Stoll Keenon Ogden PLLC
Amy L. Miles
Member, Stoll Keenon Ogden PLLC
Danielle M. Day
Associate, Stoll Keenon Ogden PLLC
Yesterday, a divided U.S. Supreme Court halted the Biden administration’s enforcement of the Occupational Safety and Health Administration’s (“OSHA”) vaccination and testing Emergency Temporary Standard (“ETS”) for private businesses. More specifically, the U.S. Supreme Court overturned an earlier decision by the Sixth Circuit, which concluded that a stay of the rule was not justified. In reaching its conclusion, the U.S. Supreme Court noted that a stay is appropriate, because it is likely the “Secretary [of Labor] lacked authority to impose the mandate.” The Court further opined that although Congress gave OSHA “the power to regulate occupational dangers”, it doubted Congress gave OSHA “the power to regulate public health more broadly.” If not stayed, the OSHA ETS would have compelled private businesses with at least 100 employees to require their employees be vaccinated against Covid-19 or get tested weekly at the employee’s expense, or risk a fine up to $136,532.
In a second opinion issued yesterday, and in contrast, the U.S. Supreme Court permitted nationwide enforcement of a narrower mandate requiring Covid-19 vaccinations for most health care workers. This mandate was imposed by the Centers for Medicare & Medicaid Services (“CMS”) and requires vaccinations for health care workers at the more than 76,000 facilities nationwide that receive Medicaid and Medicare funds, including nursing homes and hospitals. The Court determined it is within the statutory authority of the Secretary of Health and Human Services, whose department includes CMS, to take the unprecedented action of imposing a nationwide vaccinate mandate to address the Covid-19 pandemic, which has created an unprecedented infection problem in Medicare and Medicaid facilities.
The first Order, issued by a six-justice majority, provided interim relief for individuals who oppose the OSHA ETS. The Court agreed it is likely the parties opposing the mandate, who filed lawsuits alleging OSHA’s mandate exceeds its statutory authority, are likely to succeed. The Court observed that, despite the presence of risks associated with Covid-19 in many workplaces, “it is not an occupational hazard in most.” Moreover, the Court compared the risk of Covid-19 to the day-to-day dangers we face from crime, air pollution, or other communicable diseases and opined that “[p]ermitting 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.”
The Court did suggest that a more-limited vaccine-or-test mandate might pass muster where Covid-19 “poses a special danger because of the particular features of an employee’s job or workplace.” In those cases, “targeted regulations are plainly permissible.” This indicates other private and public entities may be able to implement a vaccine mandate, just as CMS can. The Court was clear, however, that OSHA simply cannot regulate “the everyday risk of contracting Covid-19 that all face.” As a result, the Court reimposed a nationwide stay blocking the rule until a final decision is made on whether OSHA had statutory authority from Congress to impose this type of vaccine mandate.
In a second order, the Court in a 5-4 decision allowed the CMS vaccine mandate to go into effect. In its decision, the Court relied on congressional authority to protect patient health and safety, noting that CMS has broad powers to condition facilities’ participation in the Medicare and Medicaid programs on “requirements as [CMS] finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.” The Court further noted that not only are vaccine requirements common in the health care setting, but “healthcare workers and public-health organizations overwhelmingly support” the CMS mandate, which “suggests that a vaccination requirement under these circumstances is a straightforward and predictable example of the ‘health and safety’ regulations that Congress has authorized [CMS] to impose.”
It is important to note the rulings described in this article are only final as it relates to whether the mandates can be enforced while the courts of appeals consider the legal challenges to them. The OSHA ETS will not be enforced while litigation continues, whereas the CMS’s healthcare-based vaccine mandate will be. The Supreme Court’s Opinions do not officially bear on the outcome of ongoing lower court litigation. Sentiments expressed in the Opinions, however, may provide lower courts with insight into the way the Supreme Court would approach the merits of these two vaccine-mandate-related cases.
The Biden administration has also issued a third vaccine mandate based on the general procurement authority of the federal government, which would apply to federal employees, contractors, and sub-contractors. Like the OSHA ETS and the CMS rule, there is ongoing litigation related to the validity and enforcement of this mandate as well. The measure has been stayed following a nationwide injunction issued by a Georgia federal court, and appeals are ongoing in several federal appeals courts. It is likely that the U.S. Supreme Court will once again be asked to weigh whether the mandate should be paused while litigation continues. We expect this mandate may be upheld under rationale similar to that which supported the CMS rule. Thus, parties impacted by this mandate should prepare accordingly.
The U.S. Supreme Court opinion regarding the OSHA ETS may be found here.
The U.S. Supreme Court opinion regarding the CMS rule may be found here.
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Please also be sure to consult the Stoll Keenon Ogden’s Coronavirus Resource webpage for additional articles and information related to the latest information on new laws and directives enacted by federal, state and local governments in response to the Coronavirus pandemic.