The Supreme Court Issues Opinions on Two Vaccination Mandates:
What Employers Need to Know

January 17, 2022 | COVID | Employment

On January 13, The Supreme Court of the United States issued two important decisions pertaining to vaccinations in the workplace. In one ruling, the Supreme Court struck down the Biden Administration’s OSHA rule requiring employers of 100 or more individuals to implement a policy requiring their employees to either get vaccinated against COVID-19 or show a negative COVID-19 test weekly and wear a mask during the work day. In the other, the Court affirmed another Biden directive, through the Centers for Medicare and Medicaid Services (“CMS”), requiring employees of Medicare and Medicaid-certified facilities to be vaccinated.

WHY DID THE COURT OVERTURN THE OSHA RULE?

The Supreme Court emphasized that Congress has empowered OSHA to set workplace standards and enact occupation safety and health standards. Put differently, OSHA is limited to regulating “work-related dangers.” The majority opinion concluded that “[a]lthough COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most.” Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., Occupational Safety & Health Admin., No. 21A244, 2022 WL 120952, p. 6, (U.S. Jan. 13, 2022)(emphasis in original). As COVID-19 can spread at home or schools or within the general public, “that kind of universal risk is no different from the day-to-day dangers that all face from crime [or] air pollution.” (Id., p. 6-7). Allowing OSHA’s rule to stand would, in the Court’s determination, significantly expand OSHA’s regulatory authority without clear congressional authorizations. It would not be regulating workplace dangers but instead constitute a broader regulation of public health, exceeding OSHA’s mandate.

WHY DID THE COURT LET THE CMS ORDER STAND?

The Supreme Court first noted that both the Medicare and Medicaid programs are administered by the Department of Health and Human Services, which has a duty to ensure that healthcare providers protect their patients’ health and safety. This general authority has led to a requirement that healthcare providers maintain and enforce an “infection prevention and control program…to help prevent the development and transmission of communicable diseases.” Biden v. Missouri, No. 21A240, 2022 WL 120950, page 2. (U.S. Jan. 13, 2022). The Court analogized the vaccination requirement to other, more common requirements such as those compelling hospital employees to wear gloves, sterilize instruments, and wash hands at certain intervals, concluding that compelling vaccination in healthcare settings falls cleanly within CMS’s authority.

WHAT HAPPENS NEXT?

Technically, both matters are still pending before lower courts. The Supreme Court’s rulings, in both cases, were on temporary injunctions seeking to determine the status and enforceability of the respective rules while litigation is pending. However, in ruling on an injunction, the Court has to assess the likelihood of success of the claims at hand, so its determinations in this regard, on a temporary basis, often lead to a consistent result at lower court levels.

As always, if you are a business owner who has questions about your rights and obligations under these rulings or any local orders or ordinances, feel free to contact the attorneys at Kramer, Elkins & Watt, LLC at 608-709-7115 or info@kewlaw.com