The U.S. Supreme Court's January 13 rulings on two different vaccination mandates had two different outcomes. The Court hit "pause" on the government's enforcement of the federal Occupational Safety and Health Administration (OSHA) "large" employer Emergency Temporary Standard (ETS) covering employers with 100 or more employees, while hitting "go," allowing the government to enforce the "health care" mandate requiring health care employee vaccinations.
The central legal question before the Court in both cases was whether the federal agency promulgating the rule had the lawful authority to do so. In the case of the Secretary of Labor, acting through the federal OSHA, the Supreme Court said no. The Court ruled that OSHA likely lacked that authority and stayed enforcement. On the other hand, the Court reached a different conclusion with respect to the mandate for health care employers. The Court allowed the health care vaccination mandate to be enforced while the case proceeds in the lower courts.
Lane Powell's previous articles concerning these regulations
are found here and here.
The Federal Large Employer Mandate (OSHA ETS)
As promulgated by OSHA, the federal large employer mandate:
- Required employers with at least 100 employees to require
employees to either receive COVID-19 vaccine or submit to weekly
testing and wear a mask in the workplace.
- Exempted fully remote or employees working exclusively outdoors
from the mandate.
- Subjected employers to various recordkeeping
requirements.
- Provided steep monetary penalties for employers who fail to comply.
(More details on the OSHA ETS may be found here.)
Procedural History: After OSHA issued the ETS in November, many states and businesses filed lawsuits around the country. Early on, a federal Court of Appeals issued a stay of enforcement of the ETS. These lawsuits were later consolidated and assigned to a different federal Court of Appeals. That court dissolved the stay, and the petitioners quickly appealed to the U.S. Supreme Court. The narrow question before the Court was whether there should be a temporary stay while the Sixth Circuit evaluates the merits of the case, and during any later review by the Supreme Court.
In granting a stay, the Court concluded that the ETS likely
exceeded the Secretary of Labor's authority to empower
workplace safety standards. Among other things, the Court observed
that the Secretary of Labor had never before issued such a sweeping
rule that impacted workers both during and outside work hours.
Moreover, the ETS did not target particular roles or industries
where the danger of contracting the virus was higher than the risk
presented in day-to-day life. This indiscriminate approach then
rendered the mandate a public health measure rather than a
workplace safety standard, according to the
Court.
Key Takeaways: What Should Employers Covered by the ETS Be Doing Now?
The stay is a "pause" that prevents the Department of Labor from enforcing the ETS while the case remains under review in the Court of Appeals and in any proceedings for review in the Supreme Court. This process is likely to take several months.
For the duration of the stay, employers covered by federal OSHA are not required to comply with the ETS.
Likewise, states with approved state-OSHA plans (such as Washington, Oregon, California, and Alaska) will not be required during the period covered by the stay to enact a regulation mirroring the ETS. Employers in these states should be aware, however, that such states might still choose to enact a state regulation, as the Supreme Court's ruling does not limit this. Oregon OSHA has already announced that it will not do so during the pendency of the stay. At this time, Washington's state agency, DOSH, has not yet announced what it will do. Employers in other states with state plans should watch for further developments.
The Supreme Court left open the possibility for the Secretary of
Labor to issue a similar mandate that targets specific roles,
workplaces, and industries where the dangers of contracting the
virus are different in "degree and kind" from everyday
life, such as researchers who work with the virus and workers in
"particularly crowded and cramped environments." However,
the Department of Labor apparently will not be considering a more
refined ETS.
The Federal Health Care Mandate:
- The Secretary of Health and Human Services (HHS) issued an
interim rule issued requiring that employers and facilities
receiving Medicare and Medicaid funding ensure their staff is
vaccinated against COVID-19.
- The interim rule excludes staff working remotely and also
allows employees to receive religious and medical exemptions.
- Employers who fail to comply with the interim rule could face monetary penalties, denial for new admissions, and ultimately termination as a program participant.
Procedural History: Two groups of states, one led by Missouri and the other by Louisiana, sued to stop the rule's enforcement. The case reached the Supreme Court after two district courts issued preliminary injunctions pausing enforcement of the health care mandate until the full merits are heard.
The Supreme Court issued a "stay" of these injunctions. This means the interim HHS rule is in effect while the case plays out in the courts. The Supreme Court's opinion on allowing the interim rule to remain in effect was a near mirror image of its opinion staying enforcement of the large employer mandate:
- The HHS Secretary's core and basic function "is to
ensure that the health care providers who care for Medicare and
Medicaid patients protect their patients' health and
safety."
- The HHS Secretary has a long history of conditioning
participation in Medicare and Medicaid funding on, among other
things, providers instituting an "infection prevention and
control program designed . . . to help prevent the development and
transmission of communicable diseases and infections." This
includes other vaccination requirements for influenza, hepatitis B,
measles, mumps, and rubella. A COVID-19 vaccination program
fits squarely with that history.
- The HHS Secretary issued the rule after concluding that
vaccination was necessary to protect patients, that Medicaid and
Medicare patients are at particular risk of severe illness from
COVID-19, and that patients may avoid seeking medically necessary
care because they fear exposure to the virus from health care
workers.
- Health care workers and public health organizations support the rule.
The Court's conclusions of the particulars of the mandate may be instructive as states and other federal agencies issue vaccine mandates. The Court disagreed with the states' argument that the rule itself was "arbitrary and capricious" by requiring instead of encouraging the vaccine, the absence of a testing mandate alternative, requiring vaccines for those employees who already had COVID-19, and failing to measure the impact of staffing shortages. These decisions, the Court concluded, were within the zone of reasonableness based on the data the Secretary presented and the upcoming winter flu season.
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