On September 9, 2021, President Biden announced a plan “to require more Americans to be vaccinated.” As part of that plan, President Biden instructed the Department of Labor to issue an emergency rule mandating that employers with at least 100 employees adopt policies requiring employees to either receive the COVID-19 vaccine or submit to weekly testing. OSHA published the vaccine or test mandate on November 5, 2021, operating under an emergency temporary standard. OSHA’s mandate was immediately met with various legal challenges. The Court of Appeals for the Fifth Circuit issued a stay of OSHA’s mandate. However, after the Fifth Circuit issued its stay, all the various cases were consolidated in the Sixth Circuit, which lifted the stay.
On January 13, 2021, the United States Supreme Court reversed the Court of Appeals for the Sixth Circuit and reinstituted the stay. The Court noted that prior to OSHA’s vaccine or test mandate, it had previously issued only nine other emergency rules; six of the emergency rules were challenged in court and only one survived in full. While OSHA has the authority to issue “emergency temporary standards,” it can do so when it can show (1) “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and (2) that the “emergency standard is necessary to protect employees from such danger.” Here, the Supreme Court stated the ETS operates as a “blunt instrument” and that it “draws no distinction based on industry or risk of exposure to COVID-19.” The Court further stated that OSHA is empowered to regulate “workplace” safety standards and “occupational” hazards for “employees.” The Court also found that, although COVID-19 presents a risk in many workplaces, it is not an “occupational” hazard. The risk of spreading COVID-19, the Court noted, is no different in the workplace than at other public events. “Permitting OSHA to regulate the hazards or 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.” Therefore, the Court held that the vaccine or test mandate extended beyond OSHA’s legitimate reach.
On the same day, the Supreme Court lifted a stay on the vaccine mandate applicable to certain health care workers, holding that certain Medicaid and Medicare facilities must ensure that their employees are vaccinated against COVID-19.
On November 5, 2021 the Secretary of Health and Human Services administration, which administers the Medicare and Medicaid programs, issued an interim final rule (amending the existing conditions of participation in Medicare and Medicaid) that required participating facilities to ensure that their staff are vaccinated, unless exempt for medical or religious reasons, against COVID-19. The HHS Secretary has the authority to establish conditions for Medicaid and Medicare funding, which has included maintaining and enforcing “infection prevention and control program designed . . . to help prevent the development and transmission of communicable diseases and infections.” Despite this, an alarming number of staff at these heath care facilities remained unvaccinated from COVID-19. Given the virus’ rapid rate of infection, and the fact that many Medicare and Medicaid patients are elderly, disabled, or in otherwise poor health, the risk posed by unvaccinated health care workers was determined by the Secretary to be particularly dangerous and thus, vaccination warranted. Two groups of states challenged the rule and two federal district courts enjoined enforcement of the rule. The Government moved for a stay of the injunction and, in each case, the Court of Appeals (for both the Fifth Circuit and the Eighth Circuit) denied the Government’s motion. On appeal, however, the Supreme Court agreed with the Government, holding that Congress 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” through Medicaid and Medicare. The Court held that, though the mandate issued by the Secretary goes further than those previously issued, the Secretary has “never had to address an infection problem of this scale and scope before.”