By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.
The United States Supreme Court weighed in yesterday on the Biden administration’s COVID-19 vaccine mandates in two separate, unsigned per curiam opinions, National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration and Biden v. Missouri,
The outcomes are unsurprising and were largely reflected in the drift of oral argument, conducted less than a week before these decisions were handed down.
Private Employer Vaccine Mandate Temporarily Blocked
In the first decision, the Court temporarily blocked implementation of a rule promulgated by the Occupational Safety and Health Administration (OSHA) requiring employees of businesses with more than 100 employees be vaccinated against COVID-19 or undergo weekly testing at their own expense and wear masks at work.
The OSHA rule took effect three days before yesterday’s Supreme Court decision. The rule pre-empts contrary state laws and applies to about 84 million employees.
The Court did not opine on the merits of OSHA’s rule, but merely blocked its enforcement, while a legal challenge remains pending before the United States Court of Appeals for the Sixth Circuit. Yet the Court will almost certainly grant grant certiorari to consider the OSHA rule’s merits. Yesterday’s ruling leaves little doubt what the majority of the Court thought of the merits of the challenge.
SCOTUS Blog succinctly summarized the Court’s decision:
Describing the mandate as a “significant encroachment into the lives — and health — of a vast number of employees,” the court emphasized that Congress must speak clearly if it intends to give a federal agency the authority to “exercise powers of vast economic and political significance.”
In this case, the court continued, Congress did not. It gave the Department of Labor the power to establish safety standards for the workplace, rather than “broad public health measures.” Although COVID-19 “is a risk that occurs in many workplaces,” the court acknowledged, it isn’t a risk that workers encounter simply by virtue of being at work – COVID-19 spreads virtually anywhere that people gather. “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 court concluded. And indeed, the court noted, the fact that OSHA has never adopted a similar regulation is a “telling indication” that the vaccine-or-test mandate exceeds the agency’s power.
The handwriting is clearly on the wall. Liberal and conservative justices disagree fundamentally on who should decide pandemic policy. On the one hand, the dissent by the Court’s most liberal jurists , Stephen Breyer, Sonia Sotomayor, and Elena Kagan, maintains the issue is the prerogative of the federal government, acting through OSHA. Yet on the other hand, a concurrence by three conservative justices, Clarence Thomas, Samuel Alito, and Neil Gorsuch, contends such policy is a matter for states and Congress to decide.
Per SCOTUS blog:
Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan penned a rare joint dissent in which they complained that employees, “more than any others,” have “little control, and therefore little capacity to mitigate risk” from the spread of COVID-19. The majority’s ruling, they contended, “stymies the Federal Government’s ability to counter the unparalleled threat that COVID-19 poses to our Nation’s workers.”
The dissenters tackled the same question that was at the heart of a concurring opinion filed by Justice Neil Gorsuch (and joined by Justices Clarence Thomas and Samuel Alito): Who should decide how to respond to the pandemic? For Gorsuch, the “answer is clear”: the states and Congress. The dissenters reached a very different conclusion: OSHA, with its expertise in workplace safety and its status as a politically accountable government agency, is better suited to make decisions about how to protect workers from COVID-19 than “a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes.”
In the second per curiam opinion, by a 5-4 vote, the Court temporarily upheld a nationwide COVID-19 vaccine mandate for health care workers at facilities that participate in the Medicare and Medicaid programs, unless a worker qualifies for a medical or religious exemption. Chief Justice John Roberts, Justice Brett Kavanaugh, and the Court’s three liberal justices comprised the majority.
The Department of Health and Human Services (HHS) promulgated the rule at issue in Biden v. Missouri in November, to apply to roughly 10 million health care workers nationwide. Two federal district courts, in Louisiana and Missouri, had previously blocked enforcement of the HHS rule in about half of the states. This decision now clears the way for HHS to enforce its vaccine mandate fnationwide or health care workers.
The Bottom Line
With the federal private sector vaccine mandate now ‘temporarily’ blocked, employers themselves must now decide whether or not to require vaccination. As The New York Times reports:
The employer decision undercut one of President Biden’s most significant attempts to tame the virus and left the country with a patchwork of state laws and policies, largely leaving companies and businesses on their own.
Companies have taken different positions on whether or not to require employees to be vaccinated. Per the NYT:
Several major companies, like United Airlines and Tyson Foods, already have mandates, while others had held back and waited for legal battles to be resolved. Some companies have been anxious about losing employees at a time when workers are already scarce. While firms with mandates have said those worries largely have not come to fruition, a national requirement could have helped ease those concerns.
Walmart, Amazon and JPMorgan Chase, three of the largest employers in the United States, have yet to issue broad requirements for their workers. Some companies that have waited have cited concerns about the costs of setting up testing programs and pushback from unvaccinated employees.
The separate health care worker mandate has been upheld and applies to nearly all U.S. health care workers. If HHS aggressively enforces this mandate, it risks exacerbating crisis employment conditions in the health care sector, as many unvaccinated health care workers may now opt to quit rather than comply.
States such as California have already decided to allow asymptomatic health care workers who have tested positive to remain at their posts – although it recommends they be deployed to care for COVID-19 patients.
Once appeals are exhausted, the Court is soon likely to grant certiorari to consider more fully both the OSHA and HHS vaccine mandates. At that point, it looks likely that the OSHA mandate will be fully overturned, while the Court will uphold the HHS mandate.
With the Biden administration stymied in its ability to implement a nationwide vaccine policy via OSHA, state-level vaccine mandates will then come to the fore. That is unless Congress were to decide to act – which is highly unlikely at present, especially given the deep divisions over COVID-19 policy and questions of the ongoing efficacy of vaccines, especially as new virus variants emerge.
Per the NYT:
The Supreme Court has repeatedly upheld state vaccine mandates in a variety of settings against constitutional challenges. The two cases decided on Thursday concerned a different question, that of whether Congress has authorized the executive branch to institute the requirements.