The Supreme Court Upholds CMS Vaccine Mandate For Healthcare Workers, Not OSHA Mandate For Large Employers

A pair of rulings issued by the United States Supreme Court on January 13, 2022 provided employers with some clarity on vaccine mandates pushed by the Biden Administration. One ruling blocked the Vaccination or Test Emergency Temporary Standard ("Vaccine ETS") previously published by the Occupational Safety and Health Administration ("OSHA"), while the other ruling upheld rules issued by the United States Centers for Medicare and Medicaid Services ("CMS") requiring COVID-19 vaccinations for certain healthcare workers (the "CMS Mandate").

The Vaccine ETS was meant to require employers with 100 or more employees to have employees receive COVID-19 vaccinations or to undergo regular testing and to wear face masks as a condition of continued employment. The CMS Mandate requires employers who participate in the Medicare or Medicaid programs to require all "eligible staff" to receive one of the approved COVID-19 vaccines. The practical effect of these rulings is to send the Vaccine ETS back to the United States Sixth Circuit of Appeals for a ruling on the merits, while allowing the CMS Mandate to go into effect in all 50 states.

In distinguishing the reasoning behind accepting one mandate while halting the other, the Court appeared to focus on the issue of Congressional authorization. In the case of the CMS Mandate, the Court concluded that Congress authorized the Secretary of the Department of Health and Human Services to impose conditions on the receipt of Medicaid and Medicare funds that "the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services." A 5-4 majority of the Supreme Court found this grant of authority sufficient to justify COVID-19 vaccine requirements applicable to workers whose "core function" is to "protect their patients’ health." Consequently, the Court vacated injunctions issued by lower courts against the CMS Mandate, and its requirements are now in effect.

On the contrary, in the case of the Vaccine ETS, a 6-3 majority found that Congress did not grant sufficient authority to OSHA. Instead, the Court opined that the authority required to implement vaccine requirements across virtually all workplaces (even if only those over a certain size) rests only with Congress and individual states. The majority found that, in issuing the Vaccine ETS, OSHA had failed to account for the "crucial distinction" between" occupational risk and risk more generally." As such, according to the majority, the mandate takes on the character of a general public health measure, rather than an "occupational safety or health standard," with OSHA’s authority limited to the latter.

As a result of the Court’s ruling, the original injunction against the Vaccine ETS issued by the United States Fifth Circuit Court of Appeals was ordered back into effect. The Sixth Circuit, which had previously been tasked with reviewing the combined challenges filed against the Vaccine ETS nationwide, had lifted that injunction. The Sixth Circuit is now tasked with issuing a ruling "on the merits" (i.e., the foundational legality) of the OSHA vaccine rules; a possibly moot exercise given that six Supreme Court Justices have already questioned its legality. Notwithstanding its doubts regarding the Vaccine ETS as currently written, the Supreme Court made it clear that some vaccine requirements might be justifiable, e.g., those targeted at workplace-specific COVID risks (such as researchers who work with the virus, or those working in particularly crowded environments). It will be left to be seen whether OSHA withdraws the Vaccine ETS from Sixth Circuit review, and instead proposes more narrow vaccine requirements targeted at specific workplaces.

As a result of these two rulings, the Vaccine ETS is again halted and subject to further judicial review, while the CMS vaccine requirements for healthcare workers are now in effect nationwide. Employers not subject to the CMS Mandate will need to follow ongoing developments regarding vaccine requirements at the state and local level, while also monitoring the Sixth Circuit’s review of the Vaccine ETS and/or future OSHA action.