The U.S. Supreme Court’s January 13 rulings on two different vaccination mandates had two different outcomes. The Court hit “pause” on the government’s enforcement of the federal Occupational Safety and Health Administration (OSHA) “large” employer Emergency Temporary Standard (ETS) covering employers with 100 or more employees, while hitting “go,” allowing the government to enforce the “health care” mandate requiring health care employee vaccinations.
The central legal question before the Court in both cases was whether the federal agency promulgating the rule had the lawful authority to do so. In the case of the Secretary of Labor, acting through the federal OSHA, the Supreme Court said no. The Court ruled that OSHA likely lacked that authority and stayed enforcement. On the other hand, the Court reached a different conclusion with respect to the mandate for health care employers. The Court allowed the health care vaccination mandate to be enforced while the case proceeds in the lower courts.
Lane Powell’s previous articles concerning these regulations are found here and here.
The Federal Large Employer Mandate (OSHA ETS)
As promulgated by OSHA, the federal large employer mandate:
- Required employers with at least 100 employees to require employees to either receive COVID-19 vaccine or submit to weekly testing and wear a mask in the workplace.
- Exempted fully remote or employees working exclusively outdoors from the mandate.
- Subjected employers to various recordkeeping requirements.
- Provided steep monetary penalties for employers who fail to comply.
(More details on the OSHA ETS may be found here.)
Procedural History: After OSHA issued the ETS in November, many states and businesses filed lawsuits around the country. Early on, a federal Court of Appeals issued a stay of enforcement of the ETS. These lawsuits were later consolidated and assigned to a different federal Court of Appeals. That court dissolved the stay, and the petitioners quickly appealed to the U.S. Supreme Court. The narrow question before the Court was whether there should be a temporary stay while the Sixth Circuit evaluates the merits of the case, and during any later review by the Supreme Court.
In granting a stay, the Court concluded that the ETS likely exceeded the Secretary of Labor’s authority to empower workplace safety standards. Among other things, the Court observed that the Secretary of Labor had never before issued such a sweeping rule that impacted workers both during and outside work hours. Moreover, the ETS did not target particular roles or industries where the danger of contracting the virus was higher than the risk presented in day-to-day life. This indiscriminate approach then rendered the mandate a public health measure rather than a workplace safety standard, according to the Court.
Key Takeaways: What Should Employers Covered by the ETS Be Doing Now?
The stay is a “pause” that prevents the Department of Labor from enforcing the ETS while the case remains under review in the Court of Appeals and in any proceedings for review in the Supreme Court. This process is likely to take several months.
For the duration of the stay, employers covered by federal OSHA are not required to comply with the ETS.
Likewise, states with approved state-OSHA plans (such as Washington, Oregon, California, and Alaska) will not be required during the period covered by the stay to enact a regulation mirroring the ETS. Employers in these states should be aware, however, that such states might still choose to enact a state regulation, as the Supreme Court’s ruling does not limit this. Oregon OSHA has already announced that it will not do so during the pendency of the stay. At this time, Washington’s state agency, DOSH, has not yet announced what it will do. Employers in other states with state plans should watch for further developments.
The Supreme Court left open the possibility for the Secretary of Labor to issue a similar mandate that targets specific roles, workplaces, and industries where the dangers of contracting the virus are different in “degree and kind” from everyday life, such as researchers who work with the virus and workers in “particularly crowded and cramped environments.” However, the Department of Labor apparently will not be considering a more refined ETS.
The Federal Health Care Mandate:
- The Secretary of Health and Human Services (HHS) issued an interim rule issued requiring that employers and facilities receiving Medicare and Medicaid funding ensure their staff is vaccinated against COVID-19.
- The interim rule excludes staff working remotely and also allows employees to receive religious and medical exemptions.
- Employers who fail to comply with the interim rule could face monetary penalties, denial for new admissions, and ultimately termination as a program participant.
Procedural History: Two groups of states, one led by Missouri and the other by Louisiana, sued to stop the rule’s enforcement. The case reached the Supreme Court after two district courts issued preliminary injunctions pausing enforcement of the health care mandate until the full merits are heard.
The Supreme Court issued a “stay” of these injunctions. This means the interim HHS rule is in effect while the case plays out in the courts. The Supreme Court’s opinion on allowing the interim rule to remain in effect was a near mirror image of its opinion staying enforcement of the large employer mandate:
- The HHS Secretary’s core and basic function “is to ensure that the health care providers who care for Medicare and Medicaid patients protect their patients’ health and safety.”
- The HHS Secretary has a long history of conditioning participation in Medicare and Medicaid funding on, among other things, providers instituting an “infection prevention and control program designed . . . to help prevent the development and transmission of communicable diseases and infections.” This includes other vaccination requirements for influenza, hepatitis B, measles, mumps, and rubella. A COVID-19 vaccination program fits squarely with that history.
- The HHS Secretary issued the rule after concluding that vaccination was necessary to protect patients, that Medicaid and Medicare patients are at particular risk of severe illness from COVID-19, and that patients may avoid seeking medically necessary care because they fear exposure to the virus from health care workers.
- Health care workers and public health organizations support the rule.
The Court’s conclusions of the particulars of the mandate may be instructive as states and other federal agencies issue vaccine mandates. The Court disagreed with the states’ argument that the rule itself was “arbitrary and capricious” by requiring instead of encouraging the vaccine, the absence of a testing mandate alternative, requiring vaccines for those employees who already had COVID-19, and failing to measure the impact of staffing shortages. These decisions, the Court concluded, were within the zone of reasonableness based on the data the Secretary presented and the upcoming winter flu season.
January 25, 2022 Update
The U.S. Department of Labor posted the following statement on its website:
Statement on the Status of the OSHA COVID-19 Vaccination and Testing ETS
(January 25, 2022)
The U.S. Department of Labor’s Occupational Safety and Health Administration is withdrawing the vaccination and testing emergency temporary standard issued on Nov. 5, 2021, to protect unvaccinated employees of large employers with 100 or more employees from workplace exposure to coronavirus. The withdrawal is effective January 26, 2022.
Although OSHA is withdrawing the vaccination and testing ETS as an enforceable emergency temporary standard, the agency is not withdrawing the ETS as a proposed rule. The agency is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.
OSHA strongly encourages vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.
Lane Powell’s team of attorneys is here to help you develop and implement a strategy that best supports your organization. For more information or assistance, contact Paul Ostroff, Katheryn Bradley, Priya Vivian, or another member of our Labor, Employment & Benefits Team.