Authored by Joshua M. Smith and Matthew D. Soaper
This serves as an update to our November 19, 2021 post, “The OSHA Vaccine Mandate: Where it Stands and Where it’s Headed” and December 21, 2021 post, “Update to The OSHA Vaccine Mandate: Where it Stands and Where It’s Headed.” As a reminder, this post focuses primarily on the vaccine mandate to private employers with 100 or more employees. Other mandates, including for federal employees, federal contractors, and health care workers, are the subject of separate court actions.
Supreme Court Reinstates Stay of OSHA Mandate
On Thursday, January 13, 2022, after its January 7 oral argument regarding whether to restore the stay of the OSHA vaccine mandate, the Supreme Court reinstated the stay initially ordered by the Fifth Circuit Court of Appeals, which was later lifted by the Sixth Circuit Court of Appeals following consolidation. What this practically means is that private employers with 100 or more employees are no longer required to comply with the OSHA Vaccine Mandate, until further notice.
In a 6-3 decision, the Supreme Court reasoned that “OSHA has never before imposed such a mandate. Nor has 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 Court explicitly rejected OSHA’s authority to issue the mandate: “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”
The Court did seem to leave the door open for mandates targeted at certain high risk industries, stating, “[t]hat is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID-19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible.” While such targeted regulations have not been issued by OSHA to date, it is possible that the administration will take this approach going forward. Justice Breyer, Kagan, and Sotomayor all dissented.
CMS Mandate:
In another decision issued on January 13th, the Supreme Court upheld the Center of Medicare and Medicaid Services’ (“CMS”) Vaccine Mandate, which requires employees of healthcare facilities (that accept Medicare and Medicaid) to be vaccinated against COVID-19. In that 5-4 decision, the Court found that Congress had authorized the Secretary of Health and Human Services to issue that Mandate. Thus, for healthcare facility employees accepting Medicare and Medicaid, the vaccine mandates remain in place.
Next Steps
The Private Employer Mandate will now go back down to the Sixth Circuit and be stayed until there is a full hearing on the Mandate’s merits, which could be months from now. Until a decision is rendered following that hearing, the Mandate will remain on hold and not enforced.
Practically speaking, the Mandate is now on life support with a slim chance of the Sixth Circuit going against the majority judgments of the Supreme Court. Further, the stay of the Mandate will remain in effect during any subsequent review of the Sixth Circuit’s decision by the US Supreme Court, if the Supreme Court grants further review. Given the language of the current Supreme Court decision, it seems highly doubtful that the Mandate will survive.
The cases involved in the CMS mandate litigation will now return to the Fifth and Eighth Circuits for a full review of the applicability of that mandate.
We will continue to update you as the litigation on the OSHA mandate for Employers with 100 or more employees proceeds forward, including any decisions by the Sixth Circuit if the Biden administration determines to proceed with the litigation. As always, employers are advised to consult with counsel before making any decisions concerning the vaccine mandates.
