Supreme Court Blocks COVID-19 Vaccine Mandate

In a Jan. 13 ruling, the U.S. Supreme Court stopped the Biden administration’s vaccination-or-testing requirement for the nation’s largest employers by a vote of 6 -3. The court did allow a different and smaller policy to go forward, requiring vaccinations for most healthcare workers at the facilities that receive Medicaid and Medicare funds.

The court has been supportive of state requirements targeting the pandemic but skeptical of broad federal responses. Six of the justices said Congress had not given the Occupational Safety and Health Administration (OSHA) power to impose such a sweeping requirement in workplaces nationwide.

The Supreme Court’s decision does not represent the final word on whether OSHA may enforce the ETS. Rather, the court’s decision merely stays for the time being implementation of the rule, and enforcement of the ETS by the agency. In its ruling, the court directed the Sixth Circuit to consider the substantive validity of the ETS. Enforcement of the ETS is stayed pending that review, and (potentially) a final review again by the Supreme Court.

As a practical matter, this means that employers that were subject to the ETS now have additional time in which to prepare for compliance, should the rule ultimately be upheld (which, given the reasoning of the majority opinion, appears to be unlikely). It is also possible that in light of the court’s decision, OSHA may issue a more limited rule, or adopt different requirements by way of a permanent standard in the future.

The court’s orders, issued after an emergency hearing Friday, might seem like a split decision. But the OSHA vaccine-or-test requirement would have applied to 84 million people. The requirement for healthcare workers covers about 10 million.

In its unsigned order blocking the OSHA workplace rules, the court wrote that although the risks associated with the coronavirus occur in many workplaces, “it is not an occupational hazard in most.”

“COVID-19 can and does spread at home, in schools, during sporting events and everywhere else that people gather,” the order says. “That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life — simply because most Americans have jobs and face those same risks while on the clock — would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

The opinion said OSHA might have more limited authority. “Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible,” it said, mentioning those who work in “particularly crowded or cramped environments.”

Joining Roberts and Kavanaugh in stopping the OSHA requirements were Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Amy Coney Barrett. Thomas, Alito and Gorsuch went further, questioning exactly how much power Congress could give an agency. If federal law “really did endow OSHA with the power it asserts, that law would likely constitute an unconstitutional delegation of legislative authority,” Gorsuch wrote.

The court’s dissenting Justices — Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — issued a joint dissent withering in its criticism of the majority and defensive of OSHA’s expertise and authority.

“Over the past two years, COVID-19 has affected — indeed, transformed — virtually every workforce and workplace in the nation,” they wrote, adding that employers and workers alike had responded to the special risks of transmission. It is “perverse” to read federal law as “constraining OSHA from addressing one of the gravest workplace hazards in the agency’s history,” the dissent says.

The justices asked who should decide the protection American workers should receive: “An agency with expertise in workplace health and safety, acting as Congress and the President authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes?”

The now-halted OSHA regulations would have required employers with at least 100 staff members to require vaccinations of most employees, or implement a weekly testing regime along with masking. Businesses and 27 Republican-led states asked the court to put the workplace requirements on hold. One federal appeals court said the rules could not go forward; another said OSHA had the authority.

There was a similar battle over the requirements for healthcare workers, which the Biden administration’s initial forecast indicated would cover as many as 17 million employees. The requirement from the Centers for Medicare and Medicaid Services (CMS) mandated vaccination of critical healthcare workers at facilities that receive funds from the agency, allowing for religious and medical exceptions.

Objecting states said that the federal government did not have such a power and that it would mean employees would quit rather than comply at a time when their service is most needed. Courts had put the requirement on hold in about half of the states.

Federal law grants OSHA authority to issue emergency rules for up to six months to protect employees “exposed to grave danger” from “substances or agents determined to be toxic or physically harmful or from new hazards.” Although Biden administration officials had once expressed doubt about their powers, they changed course in September, saying OSHA had not only the authority but also the responsibility to act.

The temporary rule would have given companies with 100 or more workers a choice: Mandate that all employees be vaccinated or require unvaccinated employees to provide weekly negative coronavirus test results and wear face coverings to work on-site. The rules were set to take effect on Jan. 4, but OSHA pushed back the date in response to the litigation and said it would not immediately issue citations for those not in compliance.

Soon after the administration announced the rules for private companies in November 2021, the U.S. Court of Appeals for the Fifth Circuit blocked enforcement of the policy. Lawsuits emerged nationwide and were consolidated for review by a different court. A panel of the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay, saying the rules could go into effect.