The Court didn’t waste time getting to a controversial matter, the applications for stays of the Occupational Safety and Health Administration’s (“OSHA’s”) COVID-19 mandate concerning alternatives of mandatory testing, masking, or vaccination directed at employers and the Department of Health & Human Services (“DHHS”) mandate directed at health care facilities and their workers.

In short, with the Chief Justice and Justice Kavanaugh joining the Court’s three liberals, the Court, by a 5-4 majority, denied the stay of the health care COVID-19 mandate. And, in a 6-3 opinion, this time with the Chief Justice and Justice Kavanaugh joining the three dissenting Justices in the DHHS case, the Court, per curiam, held that the preconditions for a stay had not been satisfied with respect to the OSHA mandate.

Note that, while the Court has stayed the OSHA rule but allowed the DHHS rule to go forward, neither matter is necessarily ended. The Supreme Court’s stay orders remand each of the cases to the respective courts from which they originated for decisions on the merits.

The Supreme Court’s decisions do strongly suggest how the cases would come out if they were to reach the Court again, this time with respect to merits decisions below.

However, OSHA in particular might attempt to amend its COVID-19 order, directing its application to a narrower set of employers with workplaces where heighted COVID-19 risk could be shown, thus attempting to strengthen its case. All of that is yet to be determined.

The DHHS Mandate Is, in the Context of Preliminary Relief, Upheld

The companion cases of Biden v. Missouri and Becerra v. Louisiana concern the scope of the congressional authorization to the Secretary of DHHS under the Medicare and Medicaid programs, which provide health insurance for millions of elderly, disabled, and low-income citizens. Last November, the Secretary ordered that, in order to receive Medicare and Medicaid funding, participating facilities must ensure that their staffs are vaccinated against COVID-19, subject to exceptions for medical or religious reasons. Two U.S. district courts had enjoined enforcement of the rule, and the government sought a stay of those injunctions.

The Court’s majority, writing per curiam, cited the fact that Congress had authorized the DHHS Secretary 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.” 42 U. S. C. §1395x(e)(9). Noting that COVID-19 is a highly contagious, dangerous, and deadly threat, especially to Medicare and Medicaid subscribers, the Court upheld the Secretary’s conclusion that a COVID-19 vaccine mandate would substantially reduce the likelihood that health care workers will contract the virus and transmit it to their patients. Holding that the Secretary’s conclusion that a vaccine mandate is “necessary to promote and protect patient health and safety” in the face of the ongoing pandemic, the majority held that “the rule thus fits neatly within the language of the statute.”

Although the provision cited is directed at hospitals, the Court noted the Secretary’s similar statutory powers with respect to other Medicare and Medicaid providers. The Court went on to hold that the interim rule was not arbitrary and capricious and that the Secretary had duly considered and weighed the comparative value of a vaccine, rather than a testing, mandate, as well as the staffing and other potentially negative effects that the mandate might have.

The dissenters, led by Justice Thomas, and joined by Justices Alito, Gorsuch, and Barrett (and notably not the Chief Justice), would have blocked the mandate on the grounds that they believed that the government had not established a showing of probability of success on the merits.

The OSHA mandate was a different story.

The OSHA Mandate Is Blocked

National Federation of Independent Business v. Department of Labor and Ohio v. Department of Labor concerned a COVID-19 vaccine mandate that required virtually all employers with at least 100 employees (involving about 84 million workers) to receive a COVID-19 vaccine, and it preempts contrary state laws. The mandate has a single exception for workers who obtain a medical test each week at their own expense and on their own time, and also wear a mask each workday. The Court’s majority held that Congress had not delegated to OSHA the power to impose such a mandate and that OSHA never before had attempted to impose a rule of such broad application. Indeed, the Court noted, although Congress had enacted significant legislation addressing the COVID-19 pandemic, it had not enacted any measure similar to what OSHA had promulgated. Agreeing that the challengers are likely to prevail on the merits, the Court granted their applications to stay the OSHA rule.

The question before the Court was whether the Occupational Safety & Health Act (“OSH Act”) “plainly authorizes the Secretary’s mandate.” Holding that it does not, the majority opined that while the OSH Act empowers the Secretary of Labor to set workplace safety standards, it does not authorize the Secretary to implement broad public health measures. Instead, the Secretary has no more than the power to impose emergency temporary standards necessary to protect “employees” from grave danger in the workplace. That power does not extend beyond hazards that employees confront in their workplaces, not broader public health matters outside agency expertise. Here, the Court rejected the claim that the risk of contracting COVID-19 is a work-related danger, but the Court held that, while there is such a risk in some workplaces, it does not present an occupational hazard in most places.

Where Does This Leave Us?

Health care facilities serving Medicare and Medicaid patients must comply with the DHHS COVID-19 vaccination mandate pending the outcome of litigation on the merits, but with a likelihood of a similar ruling if the case comes back up to the Supreme Court. And other employers of 100 or more workers are not obligated, at least at present, to comply with the OSHA mandate. That doesn’t end things, though. As early as 1905, in the case of Jacobson v. Massachusetts, 197 U.S. 11, the Supreme Court upheld the authority of states to enforce compulsory vaccination laws on grounds that individual liberty is not absolute and is subject to the police power of the state. Very recently, the Court refused to block a vaccine mandate issued by the State of Maine. Thus, except to the extent that their laws might conflict or otherwise be preempted by federal laws, states and localities are free to act within the scope of their own powers. Moreover, subject to strictures that might be found in civil rights and employment statutes, employers themselves may impose at least some COVID-19 vaccination, testing, and masking policies. This should not be taken as a blanket authorization of any particular policy. While many courts have ruled favorably as to the enforcement of various employer policies with respect to COVID-19, those seeking to impose such requirements would be well served to consult with counsel before doing so.

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