U.S. Supreme Court

The Supreme Court’s Rulings on COVID-19 Vaccine Mandates, Explained

By Kaitlynn Milvert

In a pair of rulings issued January 13, the Supreme Court put on hold the federal vaccine-or-test requirements for large employers, but allowed federal vaccination requirements for health care workers to take effect while they are litigated in the lower federal courts.

The Court decisions each addressed questions of whether federal agencies — the Occupational Safety and Health Administration (OSHA) and the Centers for Medicare and Medicaid Services (CMS) — have authority to set these vaccination-related requirements.

In doing so, the Court drew new and unprecedented lines between the kinds of risks that agencies operating outside of the health care context — such as OSHA — have power to address through federal regulations. The Court’s decisions on these issues are likely to loom large in future litigation as federal vaccine requirements continue to be litigated in the lower courts.

The OSHA Case

The OSHA case came before the Court after a back-and-forth in the lower courts over whether the agency’s vaccine-or-test requirements for large employers should be put on hold while the case is litigated. The Fifth Circuit had granted a nationwide stay on enforcement, but, after challenges to the vaccine-or-test mandate from across the country were consolidated in the Sixth Circuit, the Sixth Circuit dissolved the stay. The Supreme Court’s decision, however, now puts the stay back in place.

The Court’s majority opinion looked to whether the OSH Act — the congressional statute that gives OSHA the power to regulate — clearly authorizes OSHA to issue the vaccine-or-test requirements. The Court held that it does not. In reaching that conclusion, the Court drew a novel distinction between “work-related dangers” that OSHA would have power to regulate and “universal risk[s]” that would be beyond the scope of OSHA’s authority. The Court placed COVID-19 in the latter category.

While the opinion noted that some narrower COVID-19 workplace regulations — such as regulation of “particularly crowded or cramped environments” — may be within OSHA’s purview, the Court’s majority objected to OSHA applying vaccination or testing requirements to all large employers. Per the Court, such an approach would take “on the character of a general public health measure, rather than an ‘occupational safety or health standard'” that falls within OSHA’s authority to establish.

Although the OSHA case will now return to the Sixth Circuit for a decision on the merits of the challenges to the vaccine-or-test requirements, the Supreme Court’s analysis of the scope of OSHA’s authority is likely to drive the lower court’s decision. The Court’s distinction between the broader risks of COVID-19 and narrow, workplace-specific risks may also influence future judicial rulings as courts decide cases challenging related federal COVID-19 regulations, such vaccination requirements for federal contractors.

The CMS Case

The CMS case came to the Court on the government’s request: two federal district courts had issued injunctions that blocked the CMS regulation from taking effect until the courts could rule on the cases’ merits. The Supreme Court’s decision puts those injunctions on hold, allowing CMS’s vaccination requirements for health care workers to take effect while the cases are litigated in the lower courts.

In reaching this decision, the Court’s majority opinion looked to the language of the federal statute that authorizes CMS to regulate federally funded health care facilities. The statute allows for regulations that CMS “finds necessary in the interest of the health and safety” of patients at facilities that receive federal funding. The Court determined that the vaccine requirements for health care workers fall within the realm of permitted regulations.

Where the Court in the OSHA case regarded the vaccine-or-test requirements as falling outside of permissible workplace “safety or health” requirements, the Court in the CMS case saw the vaccination requirements as appropriate “health and safety” regulation in the health care context. The Court noted that “ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm.”

This vision of COVID-19 risks as health care-specific risks points toward the Court’s willingness to recognize federal regulatory authority to address COVID-19 risks in the health care context, but not far beyond. The CMS ruling represents a favorable decision for federal regulations to mitigate COVID-19 in the health care sphere, but also reinforces the Court’s line-drawing exercise in the OSHA case that seems to limit federal agency authority to regulate risks that the Court deems too “universal” or “everyday.”

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