January 14, 2022 – Yesterday, the U.S. Supreme Court issued two highly anticipated rulings, blocking the Biden administration’s vaccine-or-testing rule for private businesses with at least 100 employees, and allowing a stricter yet narrower rule aimed at the health care industry to take effect nationwide.
The Supreme Court’s rulings came in two per curiam orders covering four appeals, which were consolidated into two separate cases and argued last week.
The first order, issued by a six-justice majority, stopped an emergency rule from the Secretary of Labor, acting through the Occupational Safety and Health Administration (OSHA), requiring businesses with more than 100 employees to either adopt a COVID-19 vaccination mandate or have workers submit to weekly tests.
“OSHA has never before imposed such a mandate,” the majority opinion stated. “Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID-19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here.”
Justices Breyer, Sotomayor, and Kagan dissented to the order staying OSHA’s rule. Justice Gorsuch, joined by Justices Thomas and Alito, provided a concurrence.
The Supreme Court agreed that challengers to OSHA’s rule were likely to succeed on the merits of their arguments before the Sixth Circuit that the rule is unlawful and that OSHA went beyond the permissible contours of the Occupational Safety and Health Act (“OSH Act”) when issuing it.
In particular, the majority emphasized that the OSH Act empowers the Department of Labor to set “workplace safety standards, not broad public health measures,” the latter of which “falls outside of OSHA’s sphere of expertise.”
According to the majority, COVID-19 is “not an occupational hazard” in most workplaces that OSHA is tasked with regulating since it also spreads in people’s homes, schools, and other places where people gather. The justices compared the “universal risk” posed by the virus to other “day-to-day dangers” that people face, citing as examples “crime, air pollution or any number of communicable diseases.”
“It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind – addressing a threat that is untethered, in a casual sense from the workplace,” the majority said. “This lack of ‘historical precedent,’ coupled with the breadth of authority that the Secretary now claims, is a ‘telling indication’ that the mandate extends beyond the agency’s legitimate reach.”
The majority noted, however, that its ruling does not entirely preclude OSHA from regulating “occupation-specific risks related to COVID-19,” stating that “targeted regulations are plainly permissible” in circumstances where the virus “poses a special danger because of the particular features of an employee’s job or workplace.”
The Supreme Court’s decision does not represent the final decision on whether OSHA may enforce its Emergency Temporary Standard (ETS). Instead, the Court’s decision stays, for the time being, implementation of the rule and enforcement of the ETS by OSHA. In its ruling, the Supreme Court directed the Sixth Circuit to consider the substantive validity of the ETS. Enforcement of the ETS is therefore stayed pending that review and a possible final review again by the Supreme Court.
As a practical matter, 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 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.
Many employers may also be subject to COVID-19 vaccination and testing requirements at the state and local levels, which are not affected by the Supreme Court’s decision. Employers should consult with counsel to discuss the meaning of the Supreme Court’s ruling in their workplaces, as well as what safety practices they should consider in view of the ongoing challenges posed by the COVID-19 pandemic.
The second order, issued by a 5-4 vote, upheld the federal government’s ability to enforce a separate workplace vaccination rule issued by the Centers for Medicare & Medicaid Services (CMS).
According to the majority, unlike OSHA, CMS acted within the authority granted to it by Congress when it issued the rule.
“The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it,” the majority observed. “At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.”
Justice Thomas, joined by Justices Alito, Gorsuch, and Barrett, dissented in the CMS decision.
The CMS regulations, which are overseen by the Department of Health and Human Services, require health care workers at hospitals, nursing homes, and other facilities that participate in Medicare and Medicaid to be fully vaccinated. There is no weekly testing option.
Ulmer’s Employment & Labor Practice Group will continue to stay on top of these developments and is available 24/7 to provide strategic advice and counseling to employers navigating the COVID-19 pandemic. Please reach out to our attorneys if you have any questions.
The information provided in this client alert speaks only to the information and guidance we have available as of the date of publication and is subject to change. We will continue to follow further issued guidance and regulations and endeavor to post those updates via our website. Please continue to follow these updates at ulmer.com. This legal update was created by Ulmer & Berne LLP, and is not intended as a substitute for professional legal advice. Receipt of this client alert, by itself, does not create an attorney client relationship. For any questions, or for further information, please contact Joseph J. Brennan at email@example.com.