On January 13, 2022, the Supreme Court of the United States (“SCOTUS”) ruled on two sets of challenges to the Biden Administration’s vaccination mandate.
The first case, NFIB v. OSHA[1], addressed a proposed mandate by the Secretary of Labor, acting through the Occupational Safety and Health Administration (“OSHA”), which applied to roughly 84 million workers and covered all employers with at least 100 employees. This proposed mandate would preempt contrary state law and require that covered workers receive a COVID-19 vaccine. The only exception would be to workers who obtained a medical test each week and wore a mask each workday. The Fifth Circuit initially entered a stay of the mandate, but when cases were consolidated before the Sixth Circuit, that court disagreed and lifted the stay, allowing OSHA’s rule to take effect. Applicants sought emergency relief from SCOTUS, arguing that OSHA’s mandate exceeds its statutory authority and is otherwise unlawful.
In a 6-3 vote[2], SCOTUS found that a stay of the mandate was justified, effectively overruling the mandate. The Court reasoned that because administrative agencies like OSHA are creatures of statute, they only possess the authority that Congress has provided them. Thus, the Court was faced with the question of whether the Occupational Safety and Health Act (the “Act”) which created OSHA, plainly authorized the Secretary of Labor’s mandate. The Court found that it did not for two main reasons; (1) OSHA is not meant to address public health issues, and (2) COVID-19 is not an “occupational hazard.”
First, the Court stated that “[t]he Act empowers the Secretary to set workplace safety standards, not broad public health measures.” Because no provision of the Act addresses public health more generally, the Court found that public health measures, like mandatory vaccinations, fall outside OSHA’s congressionally granted powers.
Second, the Court stated that OSHA is tasked with regulating occupational hazards and the safety and health of employees. Although COVID-19 is a risk that occurs in many workplaces, the Court found it to not be an occupational hazard in line with OSHA’s authority. “COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face . . .. [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.”
Further, the Court opined that imposing a vaccine mandate on 84 million Americans was not part of what OSHA was created for. This is not to say that OSHA lacks authority to regulate occupation-specific risks related to COVID-19, but that OSHA’s “indiscriminate approach crosses the line from an ‘occupational safety or health standard’ to a general public health measure, making it fall outside the bounds of the Act.”
The Court also found a lack of precedent for OSHA enacting such a broad public health measure (i.e. one that addresses a threat that is “untethered, in any casual sense, to the workplace”). This, coupled with the broad authority the Secretary tried to claim to enact such a mandate, showed that the mandate exceeded OSHA’s legitimate reach. Thus, the Court stayed the mandate.
The second case, Biden v. Missouri[3], addressed an interim final mandate by the Secretary of Health and Human Services (“HHS”). The mandate required that participating facilities must ensure their staff are vaccinated against COVID-19 to receive Medicare and Medicaid funding, unless they are exempted for medical or religious reasons. Two District Courts (Louisiana and Missouri) enjoined enforcement of the interim final mandate, which the United States Government asked SCOTUS to stay. In a 5-4 vote[4], SCOTUS granted the stay, effectively allowing the interim mandate, for the following reasons: (1) unlike OSHA, HHS did not exceed statutory authority in enacting the mandate, and (2) precedent existed for imposing mandates on healthcare facilities participating in government-funded programs.
First and foremost, the Court found the Secretary of HHS did not exceed his statutory authority in enacting the interim final mandate. Medicare and Medicaid are administered by the Secretary of HHS who has authority to ensure healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety. This includes hospitals, nursing homes, ambulatory surgical centers, hospices, rehabilitation centers, and more.
As such, Congress has authorized the Secretary of HHS to “promulgate, as a condition of a facility’s participation in the programs, such ‘requirements as he finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.’” These conditions, the Court stated, have long included a requirement that certain providers maintain and enforce an “infection prevention and control program designed . . . to help prevent the development and transmission of communicable diseases and infections.”
The Court opined that because “COVID-19 is a highly contagious, dangerous, and – especially for Medicaid patients – deadly disease,” and that healthcare facilities that wish to participate in Medicaid and Medicare programs have always been obligated to satisfy a host of conditions that address the safe and effective provision of healthcare, this interim final mandate fit squarely within the language of the statute. Thus, the Court stayed the injunctions, effectively allowing the mandate to take effect.
Even with these rulings by SCOTUS, the question remains: what does this mean for employers who were to be impacted by these mandates? For businesses with more than 100 employees, the vaccine-or-test mandate is stayed for now. However, challenges to the mandate’s legality are continuing in the Sixth Circuit, rulings which employers should keep an eye out for.
As for facilities receiving federal funding from Medicare and Medicaid, including most healthcare providers, they must ensure that their employees are vaccinated against COVID-19 unless they qualify for a medical or religious exemption. In addition, healthcare facilities should keep an eye out for what it means to be “vaccinated” from COVID-19. As the virus continues to evolve and new variants emerge, what it means to be “vaccinated” from the virus may evolve as well; being “fully vaccinated” in the future may include boosters in addition to the primary series of vaccines by Johnson & Johnson, Pfizer, and Moderna. It is important for healthcare facilities to be wary of these potential changes and keep their employees informed of them as well.
[1] https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf.
[2] Majority – Justices Roberts, Kavanaugh, and Barrett; Concurrence – Justices Gorsuch, Thomas, and Alito;
Dissent – Justices Breyer, Sotomayor, and Kagan.
[3] https://www.supremecourt.gov/opinions/21pdf/21a240_d18e.pdf.
[4] Majority – Justices Roberts, Breyer, Sotomayor, Kagan, and Kavanaugh; Dissent – Justices Thomas, Alito, Gorsuch, and Barrett.
For questions about OSHA regulations, contact Elizabeth White at ewhite@dsvlaw.com or your DSV attorney.
***The information contained on this website is for informational purposes and is not intended as formal legal advice and cannot be relied upon as such. No attorney client relationship is established or intended as a result of the information contained on this website.***