Supreme Court Rules on Vaccine Mandates

January 19, 2022

On Jan. 13, the U.S. Supreme Court blocked a Biden administration requirement that larger businesses require employees to be vaccinated or have a masking and testing policy but allowed a similar vaccine mandate to go into effect for around 10 million health care workers.

The decisions hinged on whether the administration had the authority to issue the policies to respond to the COVID-19 pandemic, which has resurged as increased numbers of Americans are testing positive among the spread of the highly contagious omicron variant.

In a 6-3 order, the justices halted an Occupational Safety and Health Administration (OSHA) rule for larger businesses to either require vaccines or have a masking and testing policy early this year. This means that employers are free to establish their own vaccination and testing rules. The administration mandate had required that workers at businesses with 100 or more employees get vaccinated or submit a negative COVID-19 test weekly to enter the workplace. It also required unvaccinated workers to wear masks indoors at work.

In a 5-4 order, the justices allowed a Centers for Medicare and Medicaid Services (CMS) vaccination mandate for health care workers at federally funded health care facilities. There is a religious and health care exemption under this rule, and the ruling does not impact any state-imposed requirements that may be in place.  

In both cases, the challenges to the Biden administration actions were at preliminary stages, when courts were deciding whether to allow the actions to go into effect while the lawsuits moved through the legal system. The Supreme Court’s rulings will not stop the underlying legal fights over the policies.

Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS)

In the OSHA case order, which did not state which member of the majority wrote it, the court agreed that the states and businesses that challenged the OSHA mandate are likely to prevail on their argument that the agency overstepped its statutory authority and is otherwise unlawful.

The court concluded that Congress gave the agency the power to regulate occupational dangers but not health care more broadly, and that “requiring the vaccination of 84 million Americans, simply because they work for employers with more than 100 employees, certainly falls in the latter category.”

The inaction of Congress played a significant role in the decision. The court wrote that OSHA has never imposed such a mandate, and neither had Congress.

“Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here,” the ruling states.

Justice Neil M. Gorsuch, in a separate concurrence joined by Justices Clarence Thomas and Samuel A. Alito Jr., wrote that the question before the justices “is not how to respond to the pandemic, but who holds the power to do so.”

“The answer is clear: Under the law as it stands today, that power rests with the States and Congress, not OSHA,” Gorsuch wrote. “In saying this much, we do not impugn the intentions behind the agency’s mandate.”

Justice Steven Breyer, in a dissent joined by the other justices on the liberal wing of the court, Elena Kagan and Sonia Sotomayor, said the majority misapplied legal standards, “acted outside of its competence,” usurped a decision that belongs to federal officials, and stymied the government’s ability to counter the threat COVID-19 poses to workers.

“Today, we are not wise,” Breyer wrote. “In the face of a still-raging pandemic, this Court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed. As disease and death continue to mount, this Court tells the agency that it cannot respond in the most effective way possible.”

Health and Human Services Vaccination Rule — Employees of Health Care Providers that Participate in Medicare and Medicaid

On the health care worker vaccine policy, the court’s majority found that Congress has authorized the secretary of Health and Human Services to impose conditions on health care facilities that receive Medicaid and Medicare funding that protect patients.

“The rule thus fits neatly within the language of the statute,” the majority ruling states. “After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm.”

And the ruling points out that vaccination requirements “are a common feature of the provision of health care in America: Healthcare workers around the country are ordinarily required to be vaccinated for diseases such as hepatitis B, influenza, and measles, mumps, and rubella.”

In a pair of dissents, Thomas, and Alito, joined by Gorsuch and Justice Amy Coney Barrett, wrote that the Biden administration had not made a strong showing that Congress gave it the authority to compel more than 10 million workers to get vaccinated.

“If Congress had wanted to grant CMS authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly,” Thomas wrote. “It did not.”

This latest development in the ongoing controversy of vaccine mandates is sure to cause confusion among employers that are considering how best to respond to the challenges presented by the COVID-19 pandemic.