The Supreme Court issued two opinions on January 13, 2022 relating to federal agency vaccination rules and mandates. In one opinion, the Court issued an emergency stay of the Occupational Safety and Health Administration (OSHA) “vaccine or test” Emergency Temporary Standard (ETS). In another opinion, the Court upheld the Centers for Medicare & Medicaid Services (CMS) vaccine mandate for certain health care providers.
OSHA “Vaccine or Test” ETS
As previously reported here, the OSHA ETS would require employers with 100 or more employees to require that workers either receive the COVID-19 vaccine or submit to regular COVID-19 testing and wear a face covering.
The Court found that the Occupational Safety and Health Act, OSHA’s authorizing statute, grants OSHA the power to “set workplace safety standards, not broad public health measures.” The vaccine or test rule, therefore, falls outside of the agency’s scope of authority.
The Court further stated that COVID-19 is a “universal risk” and 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 found that OSHA does have authority to 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.
The dissent argued instead that OSHA has authority to issue the rule because COVID-19 is a “new hazard” and “physically harmful agent” that poses a “grave danger” to millions of employees.
The 6-3 decision of the Court was issued per curiam, with Justices Gorsuch, Thomas, and Alito concurring in the decision, and Justices Breyer, Sotomayor, and Kagan dissenting. The Court stayed the ETS pending disposition of the petitions for review in the Sixth Circuit and disposition of the applicants’ petitions for writs of certiorari, if timely sought.
CMS Vaccine Mandate
As previously reported here, the CMS vaccine mandate requires facilities that receive Medicare and Medicaid funding to ensure that their staff are vaccinated against COVID-19.
By a 5-4 vote, the Court released the CMS rule from the stays imposed by two district courts, thus allowing the rule to take effect. Justice Thomas issued a dissenting opinion, joined by Justices Alito, Gorsuch and Barrett.
The majority found that the Secretary of Health and Human Services was authorized 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.” As “COVID–19 is a highly contagious, dangerous, and—especially for Medicare and Medicaid patients—deadly disease,” the Court found the Secretary properly determined that a “COVID–19 vaccine mandate will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients.” Accordingly, a vaccine mandate is “necessary to promote and protect patient health and safety” in the face of the ongoing pandemic.
In distinguishing between the OSHA ETS and the CMS vaccine mandate, the Court said that the “challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it” (i.e., OSHA). At the same time, “such unprecedented circumstances provide no grounds for limiting the exercise of authorities an agency has long been recognized to have” (i.e., CMS).
So, now what?
Employers governed by the CMS vaccine mandate should continue to adhere to the requirements laid out in the mandate.
For employers who would have been covered by the OSHA ETS, there are some decision points. The ETS is not permanently off the table and there is still the possibility of formal rulemaking on this topic. So, employers should continue to think about their approach to mandates and testing. Some employers may choose to proceed with a mandate, especially in light of the recent Omicron surge. Others may wish to adopt a vaccine or test program (along the lines of what they planned under the ETS). Just because the federal government is not mandating specific vaccination and testing requirements does not mean that the concerns underlying the issuance of the ETS in the first instance have resolved. So, employers should continue to focus on workplace safety and monitor developments from the CDC and state and local governments.
Ballard Spahr’s Labor & Employment Group counsels employers regarding the changing requirements and status of the COVID-19 vaccine mandates and workplace safety and compliance.