SCOTUS blocks employer vaccine mandate, but keeps it for health care workers

The Biden administration’s vaccine mandate for health care workers will go into effect nationally, ruled a 5-4 U.S. Supreme Court on Thursday, but the court, in a separate 6-3 vote, blocked the vaccine-or-test requirement for large employers.

The justices’s rulings came just days after they heard more than three hours of arguments on two sets of emergency applications. In one set, the administration asked the high court to lift injunctions halting the vaccine rule for health care workers in facilities receiving Medicare and Medicaid funding, and in the other, a group of businesses and 27 Republican-led states wanted the court to order a stop to the employer rule while appeals proceeded in the lower courts.

The mandate for health care workers would cover more than 17 million employees at 76,000 facilities, the administration said.

“The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it,” the majority, in an unsigned opinion said, “At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.”

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett dissented.

The majority’s opinion said those injunctions issued by district courts in Louisiana and Missouri are “stayed” while appeals by the states and others are considered by the U.S. Courts of Appeals for the Fifth and Eighth Circuits.

The majority noted the vaccine mandate goes further than what the Health and Human Services secretary has done in the past to control infections in Medicare and Medicaid facilities, but, it added, “he has never had to address an infection problem of this scale and scope before. In any event, there can be no doubt that addressing infection problems in Medicare and Medicaid facilities is what he does.”

Thomas, leading the dissenters, wrote the statutory provisions relied upon by the government for the authority to require the vaccine related only to the administration of Medicare and Medicaid and “the practical management and direction” of those programs.

“These cases are not about the efficacy or importance of COVID–19 vaccines,” Thomas wrote. “They are only about whether CMS has the statutory authority to force healthcare workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo. Because the government has not made a strong showing that Congress gave CMS that broad authority, I would deny the stays pending appeal.”

Separately, the Occupational Safety and Health Administration issued the workplace rule as an emergency temporary standard for employers with 100 or more employees. It would cover about 80 million workers who must either vaccinate or test for COVID-19 weekly and wear masks.

“The question before us 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,” the majority wrote in an unsigned opinion.

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented. Breyer, writing for the dissenters, said:

“In our view, the Court’s order seriously misapplies the applicable legal standards. And in so doing, it stymies the federal government’s ability to counter the unparalleled threat that COVID–19 poses to our nation’s workers. Acting outside of its competence and without legal basis, the court displaces the judgments of the government officials given the responsibility to respond to workplace health emergencies.”

Karen Harned, executive director of the National Federation of Small Business legal center, applauded the blocking of the employer vaccine-or-test rule, saying, in a statement: “As small businesses try to recover after almost two years of significant business disruptions, the last thing they need is a mandate that would cause more business challenges. We are pleased the Supreme Court stopped the rule from taking effect while the courts consider whether or not it is legal. We are optimistic that the courts will ultimately agree with us that OSHA does not have the emergency authority to regulate the entire American workforce.”

But health law scholar Lawrence Gostin of Georgetown University’s Institute for National and Global Health Law, said the decision will prolong the pandemic. “The OSHA employer mandate was the single most effective policy for getting people vaccinated,” he said. “Without a wide-reaching federal mandate, it’s unlikely the national vaccination rate of just over 60% will improve. We are way behind our peer nations. This Supreme Court’s decision makes it hard to see how we will effectively combat Omicron, and future COVID variants. Even more concerning is that the court is eviscerating the very ability of the federal government to protect Americans. The justices are overturning decades of precedent upholding federal public health powers.”

During arguments on the workplace rule, conservative justices appeared increasingly skeptical of OSHA’s authority to issue the broad-reaching mandate. OSHA has authority to issue emergency temporary standards for a maximum of six months to address “a  grave danger” from “substances or agents determined to be toxic or physically harmful or from new hazards.”

In National Federation of Independent Business v. Dept. of Labor, consolidated with Ohio v. Dept. of Labor, Scott Keller of Lehotsky Keller, counsel to the business group, argued that the workplace rule would create a “massive economic shift,” causing billions of dollars in costs to businesses. He also said employees would quit and this would exacerbate a worker shortage and supply chain problems. OSHA, he added, had never imposed a vaccine requirement.

Chief Justice John Roberts Jr. suggested that the states or Congress may be the more appropriate actors in this situation. He also questioned whether the administration was attempting a “work-around” by going agency by agency.

But U.S. Solicitor General Elizabeth Prelogar countered that “Exposure to covid-19 on the job is the biggest threat to workers in OSHA’s history. The court should reject the argument that the agency is powerless to address that grave danger.” The administration, she added, was not attempting a work-around but was trying to use the legal authorities available to address the problem. She found a sympathetic audience in the court’s three liberal justices who had statistics on infections and deaths from the virus at their fingertips. “More and more people are dying every day. More and more people are getting sick every day,”  Justice Elena Kaga said. “This is the policy that is most geared to stopping all this.”

The court overall seemed more willing to accept the health care worker mandate. Roberts said it was a closer fit to the authority of the secretary of Health and Human Services.

“I think it would be bizarre to say that the secretary’s authority to protect the health and safety of Medicare and Medicaid patients does not include the authority to adopt a measure that you see other regulators adopting, the medical community urging and other providers adopting voluntarily,” Fletcher said.

Justice Brett Kavanaugh noted an unusual aspect of the case was that those who would be regulated by the mandate were not present among the challengers. All of the major medical and health associations, he said, supported the mandate.

“Where are the regulated parties complaining about the regulation?” he asked.

But Louisiana Deputy Attorney General Jesus Osete said enforcing the mandate would lead to an “imminent crisis” in rural areas when health care workers, already in short supply, choose to quit their jobs rather than vaccinate.