January 23, 2022

Volume XII, Number 23

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Supreme Court Stays Private Vaccine Mandate; Upholds Requirement for Certain Healthcare Workers

On January 13, 2022, the United States Supreme Court issued two opinions on the Biden Administration vaccination mandates. 

In an unsigned 6–3 majority opinion, the Court stayed the Biden Administration’s OSHA COVID-19 Vaccination and Testing, Emergency Temporary Standard (OSHA ETS) that applied to virtually all private employers with a least 100 employees – approximately 84 million workers. The OSHA ETS mandated that the covered workers receive a COVID-19 vaccine regime, or as an exception, permit workers to obtain a medical test each week in addition to wearing a mask to work. (National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration595 U.S. ____ (2022).) 

The Supreme Court also issued a 5–4 unsigned majority opinion that allowed the Biden Administration vaccine mandate issued by the Department of Health and Human Services (HHS), ruling that medical facilities nationwide, subject to their Medicare and Medicaid provider agreements, can mandate vaccination to their healthcare workers. (Biden v. Missouri, 595 U.S. ____ (2022).) 

Private Employers

In the National Federation matter involving private employer vaccination, the Court addressed whether OSHA acted within its authority to impose the vaccination mandate and whether the federal agency and federal government acted within the powers they are given. The Court noted that OSHA is tasked with ensuring occupational safety – that is, “safe and healthful working conditions” under the Occupational Safety and Health Administration Act, under the supervision of the Secretary of OSHA. In issuing standards under the Act, OSHA generally requires a “rigorous process that includes notice, comment, and an opportunity for a public hearing”; however, emergency standards can avoid this notice-and-comment procedure but only in the narrowest of circumstances:

  • That employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards

  • And that the emergency standard is necessary to protect employees from such danger. 

The Court’s majority found the OSHA ETS did not meet this requirement and that OSHA exceeded its authority in issuing the mandate. The Court further found that the applicants, states, businesses, trade groups and nonprofit organizations seeking a stay of the ETS were likely to succeed on the merits. The Court held that while the Act empowers OSHA to set workplace safety standards, it does not allow broad public health measures and that these measures fall outside of OSHA’s “sphere” of authority. In issuing the stay, the Court did not address the ability of state or local governments or elected legislative officials to promulgate vaccination regulations and mandates. 

This ruling stays the OSHA ETS in its entirety pending the adjudication and disposition of the pending petitions now before the U.S. Court of Appeals for the Sixth Circuit and any granted petitions to the Supreme Court upon completion. The effect of this decision is that large private employers no longer need to take steps to comply with the OSHA ETS vaccination or test mandate issued until such time as the courts determine its validity. The disposition is likely to be expedited but will take months and potentially years to be fully decided. 

Healthcare Workers

As to the HHS healthcare mandate, the Supreme Court found HHS acted within its authority granted as to the vaccination mandate for healthcare workers. It found a core mission of HHS is “to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety.” The Court majority held that HHS has long lists of detailed conditions with which facilities must comply to be eligible for Medicare and Medicaid, and the vaccination mandate is another authorized use under HHS delegation of authority to prevent transmission of “communicable diseases and infections.” In essence, the majority found the HHS rule fell within the authority Congress conferred upon it and fulfills the protection of patient safety, the first rule of medical profession – do no harm. 

In summary, the Court majority found that the vaccination mandate is a health and safety regulation, which HHS has long been allowed to promulgate to protect patients and healthcare workers. Because Congress conferred this power on HHS, the injunctions issued to stop the implementation of the HHS rule are stayed until final disposition by the courts. This means the HHS rule requiring vaccinations for workers, subject to valid medical or religious exemptions, as to healthcare providers including hospitals, nursing homes, ambulatory surgical centers, hospices, rehabilitation facilities and others that receive Medicare and Medicaid payments from the federal government can be enforced and implemented. 

Takeaways

The Supreme Court’s ruling and rationale likely sets the tone for how it would rule once these cases are adjudicated in the lower courts. Please be aware, these rulings do not foreclose an employers’ ability to independently impose vaccination and testing mandates and they do not halt state and local government agencies from issuing mandates that comply with the requirements of their respective lawfully delegated authority. 

© 2022 Wilson ElserNational Law Review, Volume XII, Number 14
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About this Author

Bruno W. Katz, professional liability litigator, Wilson Elser, Law firm
Partner

Bruno Katz maintains a diverse business litigation practice that includes labor and employment, professional liability, corporate litigation and complex, multi-party litigation. Bruno represents a wide variety of clients, including hospitality companies, insurance brokers and agents, real estate agents, utility companies, attorneys, transportation companies and pharmaceutical/home health care companies.

Bruno, a captain in the Navy Reserves with the Judge Advocate General's Corps (JAG), is currently serving as the Staff Judge Advocate for...

619-881-3317
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