One vaccine rule halted, another survives Court ruling

By Heather J. Van Meter
Bullard Law
NW Law firm

Private Employer Vaccine-or-Test Mandate Stay Issued – Employers Do Not Need to Comply with OSHA Rule but Still Comply With State Laws

The Supreme Court issued its much-anticipated ruling today, staying and putting on hold the private employer vaccine-or-test mandate that affected all private employers of over 100 employees nationwide.  The case National Federation of Independent Businesses et al. v. Department of Labor, Occupational Safety and Health Administration (NFIB v. OSHA), challenges OSHA’s legal authority to issue an emergency temporary rule requiring all private employers of over 100 employees to require employees to either be fully vaccinated, or else submit to weekly COVID testing, or else be removed from work. The OSHA emergency temporary rule also required these private employers to collect and maintain proof of vaccinations and weekly test results. The OSHA rule also preempted state laws that contradicted it. Fines ranging from $13,653 to $136,532 per violation were made possible.

The Supreme Court, in essentially a 6-3 decision, determined that OSHA likely exceeded its statutory authority in issuing the rule and put a hold on its implementation. The High Court noted that OSHA had never before issued such a sweeping rule, nor had Congress in its various COVID-related laws taken such assertive action during the pandemic. Adopting much of a prior Fifth Circuit Court of Appeals rationale, the Supreme Court stated the mandate likely exceeded OSHA’s statutory authority, raised separation of powers concerns in the absence of a clear delegation from Congress was not properly tailored to the risks facing different types of workers and workplaces, and constituted a “vast encroachment” into the lives and health of 84.2 million employees.

Employers will recall that the Fifth Circuit Court of Appeals initially issued a nationwide stay and put the rule on hold, then the Sixth Circuit Court of Appeals reversed that decision by a 2-1 vote, and now the Supreme Court is going back to the Fifth Circuit’s ruling to issue a stay and put the rule on hold. While the litigation will proceed, the Supreme Court’s 6-3 decision finding that the OSHA rule is unlikely to survive the legal challenge makes it all but certain the OSHA rule will be struck down if not withdrawn by OSHA beforehand. The Supreme Court’s decision is largely based on OSHA’s limited authority to issue emergency temporary rules, which are only permitted if workers face “grave danger” and the emergency rule is “necessary to protect employees from such danger.” The High Court noted that OSHA had only sought to use its emergency rulemaking power nine times, six times were challenged in court, and OSHA only prevailed one of those six times, and OSHA had never before sought to impose such a sweeping rule affecting thousands of employers and millions of employees (an OSHA-estimated 84.2 million). The Court stated: “The regulation otherwise operates as a blunt instrument. It draws no distinctions based on industry or risk of exposure to COVID–19.” The Court also held that OSHA had delegated power over workplace safety and health rules but not overbroad public health matters. Notably, the Court pointed out that, unlike other workplace safety and health rules, a vaccine cannot be “undone” at the end of the workday.

The Supreme Court left open the possibility that OSHA could seek to issue a similar rule through its regular rule-making and comment process, which could take months for OSHA to pursue.

For questions about private employers’ compliance with continuing state laws and rules, contact Bullard Law.

Federal CMS Vaccine Mandate Survives For Now, Supreme Court Refuses to Extend Injunction

The same day the Supreme Court issued its stay of the OSHA private employer vaccine-or-test mandate, the Supreme Court also issued its 5-4 decision to dissolve an injunction that put on hold the Centers for Medicare and Medicaid Services (CMS) vaccine mandate.  While Oregon and Washington had versions of a vaccine mandate for healthcare workers already in place, this CMS rule affects more workers. The Secretary of Health and Human Services in November 2021 issued a rule requiring that, as a condition to receiving Medicare and Medicaid funding, participating facilities must ensure that their staff—unless exempt for medical or religious reasons—are vaccinated against COVID–19. Two lower courts issued injunctions preventing the rule from taking force, but the Supreme Court stayed the injunctions and are allowing the rule to go into effect. Penalties for violating the rule may include fines, withholding payments, or termination from Medicare and Medicaid funding.

The CMS rule requires nearly all facilities receiving any Medicare or Medicaid funding, including hospitals, skilled nursing facilities, hospice, surgical centers, and outpatient rehabilitation centers, to require workers to be vaccinated unless the workers are exempt for medical/disability or religious reasons. The Supreme Court, in the case titled Biden v. Missouri, recognized that CMS had the authority to issue the vaccine mandate because a central purpose of Medicare and Medicaid is to ensure that the healthcare providers serving Medicare and Medicaid patients are protecting patient health and safety, and CMS had the authority to take steps for patient health and safety, including the vaccine mandate. The High Court also noted that CMS has long had extensive rules requiring infection prevention and control programs at all CMS-paid facilities. The Court seemed particularly persuaded by the argument that Medicare and Medicaid patients are largely elderly, disabled, or otherwise have poor health, and healthcare workers could easily spread the COVID-19 virus to the patients with dire consequences. The Supreme Court also considered that healthcare workers are ordinarily required to be vaccinated for many diseases, including Hepatitis B and the flu.

For questions about implementation of the CMS rule, including medical/disability and religious exemptions, contact Bullard Law.

The content of this Alert is provided for general information purposes only. It should not be considered legal advice or used as a substitute for consulting an attorney for legal advice.

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