On Thursday, the U.S. Supreme Court handed down a pair of anxiously-awaited decisions affecting tens of millions of American workers.
In the first decision, the Court stayed implementation of an Emergency Temporary Standard (“ETS”) issued by OSHA that would have required employers with 100 or more employees to adopt and enforce policies either (a) mandating COVID-19 vaccines for most workers, or (b) requiring unvaccinated workers to wear masks at work and get weekly tests for COVID-19.
Numerous lawsuits challenged the validity of the ETS, including one case in which the Fifth Circuit Court of Appeals issued a nationwide injunction against enforcement of the standard. All of the suits were consolidated and transferred to the Sixth Circuit, which lifted the injunction. Last week the Supreme Court heard oral arguments in the appeal, and in this most recent decision has reinstituted the stay, blocking enforcement of the ETS while the litigation proceeds. This stay of the OSHA ETS will remain in place while this litigation is pending or further action is taken by the U.S. Supreme Court. No change in this status is expected to occur any time soon, or likely ever.
In halting the ETS, the Supreme Court found that the challengers to the rule are likely to succeed on their claim that OSHA lacked authority to impose the mandate, which the Court called “a significant encroachment into the lives—and health—of a vast number of employees.” The Court noted that OSHA’s role is to protect employees from risks they face at work. COVID-19, the Court held, is a universal risk that all people face, rather than an “occupational” hazard faced in the workplace. The Court also differentiated a vaccine from other workplace safety measures like eye protection and hard hats that employees put on at the beginning of their shift and take off when they go home. “A vaccination,” the Court’s majority wrote, “cannot be undone at the end of the workday.” The Court also determined that OSHA exceeded its authority by adopting a blanket standard based on the size of the employer as opposed to the nature of a particular job or the specific working conditions under which it is performed.
The litigation regarding the ETS will continue, but the Supreme Court has clearly signaled that OSHA lacks the authority to promulgate the mandate as it is currently written.
President Biden and Labor Secretary Martin Walsh expressed their disappointment with the Court’s ruling, and are urging employers to adopt their own policies requiring employees to get vaccinated, or to wear masks and undergo regular testing for COVID-19. Employers not covered by another federal, state, or local mandate have the ability to voluntarily adopt such policies tailored to the specific needs of their workplace, subject to the requirements of other applicable laws, such as Title VII and the Americans with Disabilities Act. Many employers have already done so, but in light of the Court’s ruling, they are no longer required to do so pursuant to the OSHA ETS.
The second decision handed down by the Court lifted a pair of injunctions blocking enforcement of a U.S. Department of Health and Human Services interim final rule requiring employees of facilities receiving Medicare and Medicaid funding to get vaccinated against COVID-19 unless exempted for religious or medical reasons.
In contrast to the first case, where the Court found that OSHA had exceeded its authority to regulate workplace risks, the Court found that DHHS had been specifically authorized by Congress to promulgate, as a condition of a facility’s participation in Medicare and Medicaid, such requirements that the Department finds necessary in the interest of the health and safety of individuals who are furnished services at that facility. The Court noted that conditions imposed by DHHS have long included requirements that providers maintain and enforce infection prevention and control programs designed to prevent the development and transmission of communicable diseases and infections.
The injunctions had blocked enforcement of the DHHS rule in several states. The Supreme Court’s order now requires compliance with the rule nationwide.
Taken together, these seemingly contradictory decisions—one blocking a vaccine rule and the other upholding another vaccine rule—share the common theme of determining the boundaries of Congress’s grant of authority to an administrative agency. In each case, the Justices in the minority authored dissenting opinions strongly disagreeing with the outcome.
Employers are encouraged to consult with employment counsel to better understand what these decisions mean for their business, and to ensure that their COVID-19 policies are consistent with law.