Supreme Court Re-Implements Stay of Vaccine Mandate for Employers, Upholds CMS Mandate

Keating Muething & Klekamp PLL

Ever since the Sixth Circuit dissolved the injunction to OSHA’s Emergency Temporary Standard (ETS), which mandates employers with 100 employees or more to require employees be vaccinated or submit to weekly testing and wear masks, all eyes have turned to the Supreme Court for intervention. After hearing oral arguments on this issue on January 7, 2022, last week the Court acted. In a per curiam opinion (an opinion issued in the name of the Court rather than a specific Justice), the Court reinstituted the stay which had been dissolved by the Sixth Circuit. Following the Sixth Circuit’s decision, OSHA had set a deadline of January 10 for employers to institute a policy consistent with the ETS, and a deadline of February 9 to begin testing. Given the Court’s ruling, those requirements are no longer in effect.

In reaching its decision, the Court found that OSHA simply did not have the authority to issue such a sweeping mandate. Noting that administrative agencies are creatures of statute, the Court explained that the law which grants OSHA power permits it to set “workplace safety standards, not broad public health measures.” Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard any more than a hazard existing wherever people gather. Permitting OSHA to enact regulations targeting such universal risks “simply because most Americans have jobs and face those same risks while on the clock” greatly exceeds the authority granted to OSHA without clear congressional authorization.

Justice Neil Gorsuch, joined by Justices Clarence Thomas and Samuel Alito, wrote a concurring opinion highlighting that the key question before the Court was who holds the power to respond to the pandemic. Justice Gorsuch ultimately notes that such power belongs with the States and Congress, not OSHA. Three Justices—Steven Breyer, Sonia Sotomayor, and Elena Kagan—dissented from the opinion, writing that the Court owed deference to OSHA, “an agency with expertise in workplace health and safety.” The three warned that the Court’s decision “undercuts the capacity of the responsible federal officials, acting well within the scope of their authority, to protect American workers from grave danger.”

This action from the Supreme Court does not technically close the door to the ETS. Instead, the stay is reinstituted as the case is fully heard and decided at the Sixth Circuit level and, if necessary, back at the Supreme Court. But in announcing this decision, the Court determined that challengers to the mandate are likely to succeed on the merits of their case, and rebukes the legal arguments put forth by the mandate’s proponents. Thus, should the Administration try to push through at the Sixth Circuit, those determinations should continue to hold, and the ETS will very likely never take effect.

But whereas the Court struck down OSHA’s ETS, it upheld the vaccine mandate imposed by the Secretary of Health and Human Services for facilities which receive Medicare and Medicaid funding. In another per curiam decision, the Court held that such facilities must ensure that their staff—unless exempt for medical or religious reasons—are vaccinated against COVID-19. In contrast to the ETS, the Court concluded that the Secretary for Health and Human Services acted within his statutory authority when issuing this more narrow mandate.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Keating Muething & Klekamp PLL

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