Editor’s note: The Supreme Court’s recent rulings on vaccine mandates for large employers and healthcare workers are sure to impact facility operations. In this article, a legal expert provides an in-depth look into the justices’ decisions and offers some predictions.
It snowed in Washington, D.C., over Jan. 6 and 7, and all federal buildings were shut down except for the U.S. Supreme Court, which makes its own hours and rules. The Court had set a special Friday calendar (an event even rarer than a live Friday night talk show) to consider two employment-related challenges to President Joe Biden’s COVID-19 regulations and decide whether they should be blocked while the legal cases proceed.
In the first case, a number of states (including Ohio and Louisiana) and several business groups took issue with the mandate that all employers with 100 or more employees must require either (1) vaccinations or (2) weekly testing and mask wearing. The states argued the regulatory bodies exceeded their power by imposing the requirements, while the business groups claimed they were prohibitively burdensome. The second case opposed a Biden rule requiring the vaccination of all healthcare workers in facilities participating in the Medicare or Medicaid programs, a measure affecting 10 million workers. The opponents argued that, especially in rural areas, the rule would lead to more employment vacancies in a job sector already facing massive personnel shortages.
Before the merits were ever reached, the COVID-19 omicron variant loomed over the Court. Heretofore only Justice Sonia Sotomayor had worn a mask on the bench, and during the vaccine mandate hearing, she took the bench virtually from chambers down the hall. She suffers from diabetes and is therefore at greater risk of catching the virus. All the other justices were masked except for Neal Gorsuch.
In a note of irony, the Ohio and Louisiana solicitors general had to appear remotely because neither could meet the Court’s strict virus testing protocol.
‘Squeezing an Elephant through a Mousehole’
The questions asked during oral argument presaged the Court’s ruling six days later: Pending the lengthy rounds of litigation, the healthcare worker mandate will stay in force while the general employee requirements would be blocked—temporarily for now, but likely for all time.
The three liberal justices (Sotomayor, Elena Kagan, and Stephen Breyer) made clear they would uphold both rules. Justice Sotomayor was vocal, noting the government’s wide latitude to promote public health and safety, as found in the dissent filed by those three justices. As usual, during the arguments, Justice Breyer reacted from a practical perspective, noting, “There were three-quarters of a million new cases yesterday. . . . That’s 10 times as many as when the [Occupational Safety and Health Administration (OSHA)] put this rule in. The hospitals are . . . full, almost to the point of the maximum . . . with people who are not vaccinated, okay? How can it be in the public interest [to block vaccinations]?”
The opinion of the three dissenting judges minced no words in their conclusion. Supreme Court justices “are elected by, and accountable to, no one. And we lack the background, competence, and expertise to assess” workplace health and safety issues:
When we are wise, we know enough to defer on matters like this one. When we are wise, we know not to displace the judgments of experts, acting within the sphere Congress marked out and under Presidential control, to deal with emergency conditions. Today, we are not wise. In the face of a still-raging pandemic, this Court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed. As disease and death continue to mount, this Court tells the agency that it cannot respond in the most effective way possible.
But the liberal wing didn’t get the swing votes of Chief Justice John Roberts or Justice Kavanaugh. They raised the theme that nothing in the congressional delegation of authority to the agencies contemplated mandatory vaccinations:
Yes, 50 years ago Congress passed a general provision, but I think it’s certainly hard to argue . . . that it gives free reign to the agencies to enact such broad regulation that . . . was certainly unfamiliar to Congress in 1970. . . . [T]his is something that the federal government has never done before, right, mandated vaccine coverage?
During the earlier arguments, Justice Kavanaugh followed up with softballs lobbed to the challengers. Here is an example:
So, as I understand it, you’re invoking the major questions doctrine and your statutory argument to say that based on the Constitution’s separation of powers, Congress must act, or the States must act and OSHA lacks authority under the current statutes to do this. . . . I want to give you an opportunity to explain the value of insisting on that congressional action for something like this at the federal level in an emergency situation and explain why we shouldn’t defer more to the executive.
Justice Samuel Alito most forcefully argued “this is fundamentally different than . . . anything that OSHA has ever done before . . . in at least two respects.” Because of the differences, he dismissed the federal government’s reliance on other cases supporting the agency’s rulemaking as “trying to squeeze an elephant into a mousehole.”
First, most OSHA regulations affect employees when they are on the job but not when they’re not on the job. In short, the shot mandate affects employees all the time. “If you’re vaccinated while you’re on the job, you’re vaccinated when you’re not on the job,” Justice Alito noted.
Second, because some employees have an adverse physical reaction to a vaccine, Justice Alito pointed out, “There is a risk, right? Has . . . OSHA ever imposed any other safety regulation that imposes some extra risk, some different risk, on the employee?”
The Court found OSHA “possesses only the authority that Congress has provided. The Secretary [of Labor] has ordered 84 million Americans to either obtain a COVID-19 vaccine or undergo weekly medical testing at their own expense. This is no ‘everyday exercise of federal power.’” Further, the majority stated:
We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance. . . . The question, then, is whether the Act plainly authorizes the Secretary’s mandate. It does not.
The Court also found OSHA’s rules should focus on occupational health, not an employee’s health 24 hours a day: “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.”
Finally, the Court dealt with vaccine proponents’ claims that “billions of dollars in unrecoverable compliance costs and . . . hundreds of thousands of employees [resigning] and . . . the Federal Government [saying] the mandate will save over 6,500 lives and prevent hundreds of thousands of hospitalizations.” But the majority wrote: “It is not our role to weigh such tradeoffs. In our system of government, that is [Congress’] responsibility.”
The Court didn’t decide OSHA’s vaccine-or-testing mandate on the final merits. Nonetheless, the ruling likely signals its death knell.
Healthcare Worker Shot Rule Likely to Survive
The rule requiring vaccinations for healthcare workers at facilities participating in Medicare or Medicaid programs had a different fate, as it was upheld in a per curiumopinion (i.e., anonymous, by the Court, although we can calculate with 100% certainty that the five justices who didn’t dissent from the ruling voted in favor of it).
The Court majority began by pointing to the U.S. Department of Health and Human Services’ (HHS) core mission “to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety.” It found the vaccination of healthcare workers against COVID-19 (some 35% of staff remain unvaccinated) was “necessary for the health and safety of individuals to whom care and services are furnished.” Proponents had argued fear of exposure to the virus from the unvaccinated healthcare staff can lead patients to forgo seeking needed medical help.
The Court concluded: “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. It would be the very opposite of efficient and effective administration for a facility that is supposed to make people well to make them sick with COVID-19. . . . [T]he [DOL] Secretary’s rule falls within the authorities that Congress has conferred upon him.”
The Court also found precedent for the healthcare shot mandate in the fact that vaccination requirements are a common feature in providing healthcare in America. After all, states ordinarily require healthcare workers around the country to be vaccinated for diseases such as hepatitis B, influenza, measles, mumps, and rubella.
How did the court square its permissive stance with the healthcare mandate with the rejection of the more general employer rules? By finding that unlike OSHA, the HHS had a long history of such health requirements: “The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it. At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.”
At argument, the maskless Justice Gorsuch signaled his future vote against the healthcare worker requirement. He asked: “Could [the government] also implement regulations about exercise regimes, sleep habits, medicines, and supplements that must be ingested by hospital employees in the name of health and safety?”
Justice Clarence Thomas’ dissent, which Justices Gorsuch, Alito, and Amy Coney Barrett joined, dismissed the “hodgepodge of provisions [the government claimed] authorizes a nationwide vaccine mandate,” writing: “If Congress had wanted to grant [the Centers for Medicare and Medicaid Services (CMS)] authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly. It did not.”
The Theoretical and the Real
In the abstract, the cases raise broad and lofty issues. Congress is supposed to make the rules, and the Executive Branch is supposed to enforce them. So, unless lawmakers decided masks were mandatory for everyone working in a company with 100 or more people (which covers about two-thirds of the U.S. workforce), how can the Executive Branch declare and enforce the policy?
On the other hand, it is the government’s obligation to promote public safety and welfare, so how can the Court block a mandate designed to do exactly that?
For better or worse, American law refuses to operate in the abstract. There always must be a “case or controversy” to which the law will be applied. For that reason, a well-known adage among lawyers is that “bad facts make bad law.”
As for the vaccine mandates, the facts can be found in not only the briefs but also the courtroom. Even though the Supreme Court building was cleared of spectators, and every necessary participant must have gotten a negative COVID-19 test the day before the argument, seven justices were masked, and an eighth wouldn’t leave her chambers.
From the justices’ ivory-tower perch where precise logic and unemotional fairness are at the heart of the system, their opinions were ultimately fraught with emotion and political heat, against which the Court hasn’t been immunized.
Bottom Line
The actual question presented to the Court was by definition temporary: Should the two rules be stayed while the litigation challenges work their way through the courts? But if our nation could learn to deal with directly opposing points of conflict, that would have a more lasting, positive effect. Somebody please develop a shot to accomplish that.
Mark I. Schickman is an editor of California Employment Law Letter. You can reach him at Schickman Law in Berkeley, mark@schickmanlaw.com.