On January 13, 2022, the United States Supreme Court issued two decisions regarding President Biden’s vaccine mandate. In Missouri v. Biden, the majority of justices, in a 5-4 decision, held that the Biden administration may require entities receiving Medicare or Medicaid funding to require that their employees be COVID-19 vaccinated, absent a medical or religious exemption. Nos. 21A244 and 21A247, 595 U.S. __ (2022). The Justices relied upon the fact that the Secretary of Health and Human Services has statutory authority to ensure that healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety. Congress specifically authorized the Secretary to promulgate “requirements that [he] finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.” 42 U.S.C. section 1395x(e)(9). The requirement that facilities require employees to have vaccines is not new under this Statute as “infection prevention and control programs designed to prevent development and transmission of communicable diseases and injections” have been permitted in the past.
Therefore, the November 5, 2021, interim final rule requiring that facilities ensure their covered staff is vaccinated against COVID-19 was permissible, as was a facility’s failure to comply, resulting in fines, denial of payment of new admissions or termination of programs. The case cited that 35 percent of staff in these facilities remain unvaccinated and pose a serious threat to patients. Data was also provided showing COVID-19 spreads rapidly among healthcare workers and patients, with the likelihood of spreading the virus increasing for unvaccinated individuals. Furthermore, there was data supporting that the fear of contracting the virus in a facility may lead patients to avoid undergoing life-saving treatment, creating further “good cause” as to why the Secretary made the new rule effective immediately.
Both the attorneys for Louisiana and Missouri agreed that the secretary could require staff at these facilities to wear gloves, sterilize instruments, wash their hands, or mandate other safety protocols. Furthermore, the court found that vaccination requirements are a common feature of the provision of healthcare in America as there are many other vaccines mandated at the state level to be employed in medical facilities. The court ruled that “…such unprecedented circumstances provide grounds for limiting the exercise of the authorities the agency has long been recognized to have.” Therefore, the two injunctions in the lower courts were lifted, pending the outcome of several other pending appeals.
However, the Supreme Court’s conservative justices did not extend this holding in the National Federation of Independent Business v. OSHA case, as the requirement that employees of large employers be vaccinated or required to wear masks while undergoing routine weekly testing was blocked in a 6-3 ruling. Nos. 21A244 and 21A247 595 U.S. __ (2022). The mandate, issued by the Occupational Safety and Health Administration, applied to roughly 84 million workers to employers with at least 100 employees.
OSHA enforces occupational safety and health standards promulgated by the Secretary of Labor. The Act does contain an exception to allow the secretary to enact rules for temporary emergency standards that take immediate effect. These rules are to be used in narrow circumstances as the secretary must show the employees are exposed to grave damage from exposure to substances or agents determined to be toxic or physically harmful or from new hazards and that the emergency standard is necessary to protect employees from such danger. Exemptions were permitted for employees who work remotely 100 percent of the time or who work exclusively outdoors. Covered employers were also responsible for implementing and enforcing their own vaccination policies and did not contain an exception for employers to allow unvaccinated workers to undergo testing and masking. Significant fines were to be implemented under the law for non-compliance.
Therefore, the Supreme Court decided that the Sixth Circuit erred in failing to issue a stay of this rule. The applicants were likely to succeed on their claim that the secretary lacked authority to impose the mandate as it was not an “everyday exercise of federal power.” The Act allows the secretary to set workplace safety standards and not broad public health measures. The court did not agree that contracting COVID-19 was an occupational hazard as it spreads in places outside the workplace, too, creating universal risk. In addition, the vaccine mandate is unlike other safety measures put in place by the secretary; however, the court agreed OSHA could regulate risks associated with working in particularly crowded or cramped environments or researchers working with the virus. The current approach did not account for the distinction between general risk and occupational risk.
Too, the mandate would cause employers to incur billions of dollars in unrecovered compliance costs and cause employees to leave their jobs, nevertheless the government argued that the mandate would save thousands of lives and hundreds of thousands of hospitalizations. However, the court declined to weigh such trade-offs as this is the role of Congress. Therefore, the applications for stays were granted.
The dissenting Justices argued that COVID-19 presents grave dangers to citizens of the United States every day and particularly to workers. As the disease spreads from person to person in confined indoor spaces, it is an issue in work settings. OSHA was charged with ensuring health and safety in workplaces and created this vaccination rule to do just that.
Of importance, neither ruling limited the right of private employers to mandate vaccinations for their employees. It is clear that healthcare employees can be required to have the vaccine by the government and that private employers may maintain their own policies regarding vaccination and testing of employees at this point in an effort to limit the spread of COVID-19.