Last week, the Supreme Court found unconstitutional the OSHA vaccine mandate that covered the 84 million Americans employed by companies with more than 100 employees. In a separate but simultaneous decision, the Court found the health care worker vaccine mandate was valid. State and local vaccine requirements remain unaffected, and businesses can still apply vaccine requirements to employees and customers.
OSHA Mandate Case
National Federation of Independent Business v. Department of Labor, 595
U.S. ___ (2022) (1/13/2022)
Decision: https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf
86 Fed. Reg. 61551 – OSHA Mandate: https://www.federalregister.gov/documents/2021/11/05/2021-23643/covid-19-vaccination-and-testing-emergency-temporary-standard
Some people believe that the Court passed a judgment on the efficacy of the vaccine or of mandates in general. That is incorrect. The Court found that the Biden administration lacked the authority to put such a measure in place. In the Court’s words, the mandate” would significantly expand OSHA’s regulatory authority without clear congressional authorization.”
The Occupational Safety and Health Administration (OSHA) was created by Congress in 1970 as part of the Department of Labor to set and enforce occupational health and safety standards for employees.
At this point, the Biden administration did not attempt to enforce a vaccine mandate on all residents of the United States, employed or not, because there is no Congressional authority, and likely no constitutional authority, for such a broad-based nationalized mandate. Instead, the administration sought to use OSHA as a mechanism for applying it to employers that met the 100-employee threshold.
The Court did not address whether the vaccine works or is a good idea but found that the Biden administration lacked authority for the rule. The Court found that Congress did not give the Department of Labor the authority to establish “broad public health measures.” Even though COVID may be spread at work, it isn’t a risk unique to employment and spreads in many other places.
The 6-3 majority found that “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.” Furthermore, OSHA had never tried to enforce a similar mandate in the past.
The Court determined that even though there are downsides to not getting the vaccine, employers and state and local entities will have to weigh the risks and decide what they should do.
Incidentally, arguments that the OSHA mandate violated religious liberty rights ignore the specific language of 86 Fed. Reg. 61551 at 61552, which provided exceptions for religious or medical reasons.
The dissent (Breyer, Sotomayor, and Kagan) noted that the “temporary” OSHA mandate, which would last 6 months, made exceptions based on religious objections or medical necessity and it “does not constrain any employer able to show that its ‘conditions, practices, means, methods, operations, or processes’ make its workplace equivalently ‘safe and healthful.’” (see page 3).
Some businesses may have begun to enforce vaccine requirements in anticipation that the OSHA mandate would be upheld. While many businesses had no intention of requiring vaccines short of a governmental mandate, others saw value in requiring vaccines but leaned heavily on the Federal rationale when explaining it to employees. The Court’s reversal of the OSHA mandate underscores the reality that companies and other entities that want to require that their employees be vaccinated should develop independent rationales and vaccination policies, not simply “pass the buck” to the Federal government. So far, while OSHA may be unable to enforce vaccination requirements, there is no set limit on what individual employers may require after considering the benefits and risks of mandatory vaccination.
Health Care Worker Case
Biden v. Missouri, 595 U.S. ___ (2022) (1/13/2022)
Decision: https://www.supremecourt.gov/opinions/21pdf/21a240_d18e.pdf
Regulation: 86 Fed. Reg. 61555 – https://www.govinfo.gov/content/pkg/FR-2021-11-05/pdf/2021-23831.pdf
This case involved the Department of Health and Human Services, which administers the federal Medicare and Medicaid programs. This case involved a challenge to the November 2021 DHHS rule that healthcare providers ensure staff vaccination or testing as a prerequisite for Medicare and Medicaid funding. Like OSHA, the HHS regulations also permitted medical and religious exceptions.
HHS has long held healthcare providers to a higher standard of care than the standard to which OSHA held employers, requiring healthcare providers to comply with a wide range of specific conditions to receive funding. In this case, HHS argued that the mandate was necessary to protect patients from healthcare workers who could contract the virus and pass it on to other patients.
Justices Thomas, Alito, Gorsuch, and Coney Barrett dissented, arguing that the Biden administration failed to convince them that Congress gave HHS the authority to impose a vaccine mandate.
HHS Religious Exemption Language:
“[T]he new requirements in this IFC may also be required to provide appropriate accommodations, to the extent required by Federal law, for employees who request and receive exemption from vaccination because of a disability, medical condition, or sincerely held religious belief, practice, or observance.” https://www.govinfo.gov/content/pkg/FR-2021-11-05/pdf/2021-23831.pdf
The Effect on Religious Accommodation
Both the OSHA and HHS regulations allowed for religious exemptions. The decision on whether to require COVID vaccines or testing will now rest with state and local authorities, which will vary in their vaccine requirements. For the time being, there is no national OSHA mandate, but there is one for healthcare providers that receive Medicare and Medicaid funding.
Practically speaking, the fact that HHS is requiring religious accommodation as part of its healthcare worker mandate, and that it ties this to Federal law, means that those seeking religious accommodation will have the benefit of the higher level protections available under the Religious Freedom Restoration Act (RFRA) that applies at the Federal level but not to state or local governmental regulations unless those governments have “RFRA-style” language. Similarly, the OSHA requirement had it lasted would have afforded individuals protection under WRFA but now they will only have whatever level of religious accommodation protection their state and local governments can provide. So, as in many other cases, those who were opposed to vaccine requirements should be careful what they wish for.