Supreme Court Stays OSHA Vaccine Mandate, but Not Healthcare Vaccine Mandate; Government Contractor Mandate Still on Hold

On January 13, 2022, the U.S. Supreme Court issued two decisions relating to President Biden’s efforts to get the United States workforce vaccinated against COVID-19.

In one decision, National Federation of Independent Business, et al. v. Department of Labor, Occupational Safety and Health Administration, Case No. 21A244, the Court halted implementation of an Occupational Safety and Health Administration (“OSHA”) regulation applicable to most employers with 100 or more employees. That rule, which took effect on January 10, 2022, mandated that covered employers require employees to be vaccinated or to test weekly and wear masks. In issuing a stay against enforcement of that rule, the Supreme Court found that OSHA likely exceeded its authority in issuing that rule. Specifically, Congress created OSHA to regulate workplace hazards. COVID-19, while present in the workplace, is not by its nature a workplace hazard. Given that requiring 84 million workers to vaccinate or test is “a significant encroachment into the lives—and health—of a vast number of employees,” OSHA must have clear authority from Congress before implementing such a rule.

In contrast, the Supreme Court refused to halt enforcement of a rule withholding Medicare and Medicaid funding from facilities that do not ensure that their staff are vaccinated against COVID–19 (unless exempt for medical or religious reasons). In Biden v. Missouri, Case No. 21A240, and a companion case, the Court said that a core function of the U.S. Department of Health and Human Services (“HHS”), which administers Medicare and Medicaid, “is to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety.” Moreover, the Court found, Congress has expressly authorized HHS 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.” A vaccine mandate for healthcare workers could be a reasonable exercise of that authority, the Court concluded.

Neither of these decisions addressed a third vaccine mandate that President Biden had issued—the one applicable to companies that contract with the U.S. Government. That rule also was challenged and its implementation was stayed by lower courts. The question in that case is whether the Federal Property and Administrative Services Act, a law that gives the president the power to promote “economy and efficiency” in federal contracting, could be used to justify a vaccine requirement. The Government will argue, as it did successfully in the healthcare case discussed above, that it can impose conditions on the money it spends. On the other hand, as noted above, HHS is expressly charged with protecting health, whereas contracting agencies that award contracts are not.

None of these decisions is the last word on the subjects that they address, so employers in all sectors are advised to stay tuned for developments and to seek appropriate legal advice.

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