Vaccination Mandate Update: January 14, 2022

Earlier this week, the Supreme Court ruled on whether to allow (1) the OSHA Emergency Temporary Standard (ETS) requiring employers of 100 or more employees to require COVID-19 vaccinations or weekly testing/daily masking for unvaccinated employees and (2) the HHS requirement for mandatory vaccination of health care workers, to proceed.  

The Supreme Court decided whether it should enjoin the OSHA ETS from going into effect while the lower courts heard the merits, and whether they should lift the injunction on the CMS mandatory vaccination condition of participation. In decisions forecast by many observers, the Court enjoined the OSHA ETS (so it cannot proceed into full effect), and then lifted the injunction on the HHS health care worker vaccine mandate (allowing it to go into effect).

Both opinions were issued “Per Curiam,” meaning an opinion coming from the court that does not specify which judge is writing for the majority. However, Per Curiam opinions do not signify that the opinions are unanimous. Both cases had dissenting opinions, and one case had a concurring opinion (which occurs when a justice agrees with the result of the case, but perhaps for different reasons than stated in the Per Curiam or Majority opinion).  

OSHA ETS

In the combined case of National Federation of Independent Business, et. al. v. Department of Labor, OSHA, et. al. / Ohio, et. al. v Department of Labor, OSHA, et. al., the Court considered whether to overturn the decision from the Sixth Circuit Court of Appeals which allowed the OSHA ETS to go into effect. The Supreme Court ruled the Sixth Circuit was wrong in not entering an injunction against the ETS, thus granting its own injunction/stay. The ETS will not be implemented while the lower courts hear the merits of the case.

Citing the Occupational Safety and Health Act, the Court wrote that an ETS is only appropriate when the Secretary shows (1) “that employees are exposed to a grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and (2) that the “emergency standard is necessary to protect employees from such danger.”  As an aside, the Court noted the poor success of past promulgated ETS’ – of the nine previously issued, eight had been struck down by courts.  

The court ruled that the applicants (NFIB and Ohio) are likely to succeed on the merits of their cases (one very important component of a four-part test courts consider when deciding whether or not to issue an injunction) because the Secretary of Labor “lacked the authority to impose the mandate.” Why did the Secretary lack the authority? First, the court noted that this ETS would affect 84 million employees and that the case of Alabama Assn. of Realtors requires the “Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” The court then considered whether or not a statute clearly authorizes such action and found that it does not. 

The court then explained that the OSHA law empowers the Secretary to set workplace standards, not broad public health measures. The opinion goes on to state that the OSHA regulates “occupational” hazards encountered by employees.  And COVID-19, which is ubiquitous, is not an occupational hazard.  To quote from the opinion:  

“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.”   

The Court found no quarrel in the fact that OSHA could regulate certain occupations because of particular features of certain jobs as it pertains to COVID-19, but “OSHA’s indiscriminate approach fails to account for this crucial distinction – between occupational risk and risk more generally – and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard.”  Reminder here that OSHA had instituted an Emergency Temporary Standard for health care workers over the summer (no vaccination discussion) that recently lapsed.  

Medicare/Medicaid Health Care Worker Vaccine Mandate

In the combined case of Biden, et. al. v. Missouri, et. al. / Becerra, et. al. v. Louisiana, et. al., the court considered whether it was appropriate for the Fifth and Eighth Circuits to agree with the lower Federal courts that an injunction was appropriate to prevent the Interim Final Rule (IFR) from going into effect. The Supreme Court ruled it was not appropriate, and thus lifted those injunctions.

This case had a lot to do with what the government can require as a “condition of participation” in the Medicare and Medicaid programs. The Secretary of HHS has a general authority to promulgate, as a condition of a facility’s participation, such “requirements as [he] finds necessary in the interest of the health and safety of individuals who are furnished services” in various institutions. Past requirements for participation have included “infection prevention and control program[s] designed…to help prevent the development and transmission of communicable diseases and infections.” In late 2020, the Trump Administration used COP’s to create requirements on long-term care facilities to test residents and employees. 

The court found the Secretary had the authority to issue this IFR under HHS’ general authorities to impose conditions when “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.”  Additionally, the court found such authority contained within various statutes pertaining to the different types of facilities. The opinion noted that the “Secretary routinely imposes conditions of participation that relate to the qualifications and duties of healthcare workers themselves”, including training, infection control, etc.

Regarding the claims by the states that the ruling was “arbitrary and capricious” (and thus violative of the Administrative Procedures Act), the court noted the extensive record compiled by the Secretary.  Another argument against the IFR was that it was promulgated without “good cause to delay notice and comment” rulemaking. The court found that the upcoming winter flu season was the good cause necessary to sidestep ordinary rulemaking.  Regarding the issue of whether the government avoided its statutory responsibility to “consult” with state agencies prior to the issuance of the IFR, the court found consultation after the announcement of the IFR (which occurred here) was enough to satisfy the government’s responsibilities under the statute.  Lastly, the statute states that the government may not “exercise any supervision or control over the … manner in which medical services are provided, or over the selection [or] tenure … of any officer or employee of” any facility, and the court said that if that statute was read to prevent this IFR, then it would mean that “nearly every condition of participation the Secretary has long insisted upon is unlawful.” 

The injunctions were lifted (“stayed”), and this rule can go into effect while the lower courts hear the merits of the cases.   

What’s Next?

In sum:

  • OSHA’s ETS is now in a stay, meaning it will not go forward as the lower courts review the merits of the law. 
  • CMS’ IFR impacting health care workers can move forward in ALL states while lower courts consider the merits of the rule.

Labor Secretary Marty Wa​lsh released a statement expressing disappointment with the OSHA ruling. He ended the statement saying, “Regardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the Covid-19 National Emphasis Program and General Duty Clause.”

On the CMS case – there had previously been some ambiguity around whether the rule could move forward in the 24 states that joined the legal challenge against CMS’ IFR. At the end of December, CMS had indicated that enforcement was moving forward in the other 26 states.  After today’s ruling, CMS posted the following:

“As a result of today’s decision, health care providers subject to the Omnibus Health Care Staff Vaccination rule in the 24 states (Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, and Wyoming) covered by this decision will now need to establish plans and procedures to ensure their staff are vaccinated and to have their employees receive at least the first dose of a COVID-19 vaccine.”

“Today’s decision does not affect compliance timelines for providers in the District of Columbia, the territories, and the 25 states where the preliminary injunction was previously lifted. See the guidance released on December 28, 2021, for additional information.”

For those in the impacted 24 states – here’s CMS’ guidance on implementation