Supreme Court Stays One Vaccine Mandate, Permits Another

Nelson Mullins Riley & Scarborough LLP

After hearing oral arguments on Jan. 7, 2022, yesterday the Supreme Court issued two opinions regarding the Occupational Safety and Health Administration (“OSHA”) emergency temporary standards and Centers for Medicare & Medicaid Services (“CMS”) interim final rule.

In a per curiam opinion, the Supreme Court granted a stay in the enforcement of the OSHA vaccine mandate that applied to employers with at least 100 employees. The stay will remain in effect pending the Sixth Circuit’s disposition of the case and will only terminate should the Supreme Court decide not to hear an appeal from the Sixth Circuit’s ruling.

This stay in enforcement was granted due to the Court’s determination that the petitioners are likely to succeed on the merits of their claim that OSHA lacks the authority to impose the mandate. The Court noted that OSHA is empowered to “set workplace safety standards not public health measures” and that “permitting OSHA to regulate hazards of daily life would significantly expand OSHA’s regulatory authority without clear congressional authorization.” In addition, the Court noted that in “its half century of existence” OSHA has never adopted a broad public health regulation of this kind “addressing a threat that is untethered, in any causal sense from the workplace.”

Conversely, in a separate per curiam opinion, the Supreme Court gave the green light to the CMS funding requirement under which participating facilities must ensure that non-exempt staff are vaccinated against COVID-19. By staying the injunctions previously in effect, the Supreme Court has effectively extended the CMS vaccination requirement to all 50 states. The Court concluded that the Secretary of Health and Human Services (the “Secretary”) “did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID-19.”

The Court stated that “perhaps the most basic” function with which the Secretary is charged is to ensure that healthcare providers serving Medicare and Medicaid patients protect their patients’ health and safety. The Court pointed out that “Congress has authorized the Secretary 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.’” Referencing the COVID-19 virus’ highly contagious and dangerous nature, as well as the Secretary’s assessment that the mandate is likely to substantially reduce the risk of transmission of COVID-19 from healthcare worker to patient, the Court concluded that the CMS interim final rule “fits neatly within the language of the statute.”

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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