On January 13, 2022, the United States Supreme Court handed down two highly anticipated opinions deciding the fate of two controversial vaccine mandates put into place by the Biden administration last year. On the one hand, the Court ruled that the Occupational and Safety Health Administration (“OSHA”) did not have the statutory authority from Congress to enact the nationwide vaccinate-or-test mandate promulgated by OSHA last year. On the other hand, the Court ruled that the Centers for Medicare & Medicaid Services (“CMS”) did have the authority to require all covered staff at federally funded healthcare facilities to get the COVID-19 vaccine. In other news, a third separate federal vaccine mandate, the “federal contractor mandate,” still hangs in the balance as a nationwide stay prevents that mandate from taking effect. The Supreme Court will likely hear arguments on this third mandate later this year.
The OSHA Mandate
In a 6-3 decision, the Court ruled that those challenging the OSHA vaccine mandate were likely to succeed on the merits of their claim that OSHA lacked authority under the Occupational Safety and Health Act (“OSH Act”) to impose a vaccinate-or-test mandate to all large employers across the country. The majority’s opinion focused on the “significant encroachment into the lives – and health – of a vast number of employees” and emphasized that COVID-19 was not a “work-related danger” or “occupational hazard” but rather it was more like the “day-to-day dangers that all face from crime, air pollution or any number of communicable diseases.” Had the rule gone into effect, it would have likely affected over 80 million American workers.
The CMS Mandate
Swinging in the other direction, the Court, in a fractured 5-4 decision, ruled that the Centers for Medicare & Medicaid Services could require all staff at federally funded healthcare facilities (i.e., those facilities participating in Medicare & Medicaid) to get vaccinated for COVID-19 (unless exempt for medical or religious reasons). The majority opinion concluded that CMS routinely imposed rules that relate to the qualifications and duties of healthcare workers, and that it was “perhaps the most basic function” of the CMS to “ensure that the health care providers who care for Medicare and Medicaid patients protect their patients’ health and safety.” Facilities that fail to reach a 100% vaccination rate (excluding exempted employees) will likely face stiff fines or be blocked from participating in future federally funded healthcare programs. The CMS vaccine mandate is expected to impact over 10 million American healthcare workers.
The full opinion is available to read here:
Federal Contractor Mandate
Finally, in other news, the Supreme Court has yet rule on a third vaccine mandate for federal contractors that has yet to make its way up to the high Court. The federal contractor mandate derives from Executive Order 14042, which required the Safer Federal Workforce Task Force to provide guidance on COVID-19 safeguards for federal contractors. In response, the Task Force issued a rule last year requiring all covered federal contractors to ensure their employees were vaccinated and complying with the CDC’s latest guidance regarding COVID-19. After several lawsuits were filed against the Task Force, the enforcement of the rule was stayed by a federal court in Georgia which paused its effects nationwide. Consequently, the federal government has advised that at this time it will not seek to enforce Executive Order 14042 for any contract performed within the scope of the Georgia court’s injunction (i.e., the 50 states, D.C., and U.S. territories).
Given the Supreme Court’s rejection of OSHA’s authority to issue a nationwide vaccine mandate, it seems likely the Court will ultimately meet the Task Force’s rule with skepticism, as the Task Force’s statutory purpose can be traced back to rules passed to ensure “economy and efficiency” and seems even further removed from workplace safety than the provisions of the OSH Act.