The U.S. Supreme Court Issues Two New Rulings Regarding COVID-19 Vaccine Mandates

January 14, 2022

Yesterday, the United States Supreme Court issued two significant rulings regarding COVID-19 vaccine mandates. First, the Court blocked enforcement of the OSHA rule. As a result, employers with more than 100 employees are not required to mandate that their employees be vaccinated against COVID-19 or get tested weekly and wear a mask. Second, the Court allowed the Centers for Medicare and Medicaid Services’ (CMS) to require vaccines for covered healthcare workers. Healthcare providers who receive Medicare and Medicaid funding must ensure its employees (other than staff who telework fulltime) are vaccinated against COVID-19, subject to medical and religious exemptions. 

Osha Rule

In National Federation of Independent Business, et al. v. Department of Labor, the Court stayed enforcement of OSHA’s emergency temporary standard (ETS) requiring private employers with 100 or more employees to implement a written mandatory COVID-19 vaccination-or-testing policy.[1] The Court stated that the Occupational Safety and Health Act empowers the Secretary of Labor to regulate occupational hazards and set workplace safety standards, not broad public health measures. Since COVID-19 is a hazard of daily life (as opposed to an occupational hazard in most workplaces), OSHA’s vaccine or testing mandate fails to account for the crucial distinction between occupational risk and risk more generally. The Court criticized the rule for not drawing any distinctions based on industry or risk of exposure to COVID-19. As a result, the mandate takes on the character of a general public health measure rather than an occupational safety or health standard. The Court concluded the Secretary of Labor lacked authority to impose such a mandate.

CMS Rule

By contrast, in Biden v. Missouri, the Court upheld CMS’s vaccine mandate for healthcare workers at facilities that receive Medicare and Medicaid funding. The November 2021 mandate requires participating facilities ensure their covered staff are vaccinated against COVID-19, subject to medical and religious exemptions. Examples of such healthcare providers include hospitals, nursing homes, ambulatory surgical centers, hospices, and rehabilitation facilities. The Court stated the core mission of CMS is to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety. The Health and Human Services Secretary determined that a COVID-19 vaccine mandate will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients. The Court noted that healthcare facilities that wish to participate in Medicare and Medicaid have always been obligated to satisfy a host of conditions that address the safe and effective provision of healthcare. The Court found that healthcare workers and public health organizations’ overwhelming support of the rule “suggests that a vaccine requirement under these circumstances is a straightforward and predictable example of the health and safety regulations that Congress has authorized the [HHS] Secretary to impose.”[2]

As has been the case since the beginning of the COVID-19 pandemic, this is an evolving situation and businesses must remain flexible and prepared to adjust their responses as needed. ABL will continue to monitor the latest developments and serve as a resource as needed. Please contact us if you have any questions or if we may be of assistance.   

For the full text of the opinions see:

• National Federation of Independent Business, et al. v. Department of Labor: Click here

• Biden v. Missouri: Click here

[1] Technically, the Court did not rule on the validity of the OSHA rule. Instead, the Court reviewed whether the temporary injunction that had been issued to block the rule was proper. The case will be sent back to the United States Sixth Circuit Court of Appeals to decide whether to permanently block or uphold the OSHA rule. However, given the strong, sweeping and critical language of the Court’s order, it is unlikely that the Sixth Circuit will uphold the OSHA rule.

 [2] Compliance dates for the CMS rule have been extended. Workers must receive their first dose by January 27, 2022, and be fully vaccinated by February 26, 2022.