Jun 22, 2021 | Neil Reichenberg, HRCI Contributing Writer
Courts Uphold the ACA and Vaccine Requirements
The U.S. Supreme Court has upheld the Affordable Care Act (ACA), while a U.S. District Court dismissed a challenge to an employer requirement that employees be vaccinated. The Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard for health care workers, and the U.S. Senate failed to get the necessary votes needed to consider the Paycheck Fairness Act.
Here’s what you need to know.
Supreme Court Dismisses ACA Challenge
In a 7-2 decision, in the case of California v. Texas, the U.S. Supreme Court dismissed a challenge to the constitutionality of the ACA, finding that the state of Texas and the other plaintiffs lacked the standing necessary to bring this action. Justice Stephen Breyer, who wrote the majority opinion, noted that federal courts only have power to adjudicate genuine cases and controversies and that litigants need to have standing. He wrote, “Neither the individual nor the state plaintiffs have shown that the injury they will suffer or have suffered is ‘fairly traceable’ to the ‘allegedly unlawful conduct’ of which they complain.” This is a narrow decision in which the Supreme Court did not address the merits of the case.
The ACA required most Americans to obtain minimum essential health insurance coverage. The law imposed a monetary penalty, based on income, upon individuals who failed to do so. In 2017, Congress nullified the penalty by setting its amount at zero dollars. Texas and 17 other states brought this lawsuit against the U.S. and federal officials, and two individuals subsequently joined the lawsuit. Several states intervened in the lawsuit to defend the ACA. The plaintiffs claim that, without the penalty, the act’s minimum essential coverage requirement is unconstitutional. They also argue that the minimum essential coverage requirement is not severable from the rest of the law, making the entire law invalid.
Concerning the individual plaintiffs, the Supreme Court observed that while the ACA still contains a provision requiring coverage, there is no longer a means of enforcement since the penalty has been zeroed out. The state plaintiffs allege indirect injury in the form of increased costs to run state-operated medical insurance programs. They say the minimum essential coverage provision has caused more state residents to enroll in the programs. The states, like the individual plaintiffs, failed to show how that alleged harm is traceable to the government’s actual or possible action in enforcing the minimum health insurance coverage, so they also lack standing. This case marks the third time that the Supreme Court has upheld the ACA.
Court Upholds Vaccine Requirement
The U.S. District Court for the Southern District of Texas has dismissed a challenge to the mandatory vaccine requirement of the Houston Methodist Hospital. In the case, Bridges, et al v. Houston Methodist Hospital et al, the court, in finding that the plaintiffs had not been coerced to get vaccinated, concluded that the hospital was trying to “keep staff, patients, and their families safer. Bridges can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else.”
This case was brought by 117 employees who objected to the policy at Houston Methodist Hospital requiring employees to be vaccinated against COVID-19 by June 7 or be terminated. The plaintiffs alleged that the COVID-19 vaccines are experimental and dangerous, and they refused to be “human guinea pigs” or “human subjects.” The plaintiffs also contended that no one can be mandated to receive unapproved medicines in emergencies. In finding that the plaintiffs had misconstrued federal law, the court rejected these claims, noting that the secretary of the federal Department of Health and Human Services (HHS) is authorized under federal law to provide medical products intended for use in an emergency, but this provision of the federal law doesn’t apply to private employers. Additionally, the court observed that the Equal Employment Opportunity Commission (EEOC) had issued guidance that employers could require employees be vaccinated against COVID-19, subject to reasonable accommodations for employees with disabilities or sincerely held religious beliefs.
The court stated, “Every employment includes limits on the worker’s behavior in exchange for his remuneration. That is all part of the bargain.” The plaintiffs indicated they plan to appeal this decision.
OSHA Issues Emergency Standard
OSHA issued an emergency temporary standard to protect health care workers from the coronavirus. According to OSHA, the “standard focuses on healthcare workers most likely to have contact with someone infected with the virus.” The standard is aligned with guidance issued by the Centers for Disease Control and Prevention (CDC).
The health care emergency temporary standard is designed to protect workers with the highest hazards for contracting COVID-19 because of treatment of suspected or confirmed coronavirus patients. This includes employees in hospitals, nursing homes and assisted-living facilities, as well as emergency responders, home health care workers and employees in ambulatory care settings. The standard requires facilities to conduct hazard assessments and develop written plans to mitigate vaccine spread, as well as provide N95 respirators or other personal protective equipment to some health care employees. Employers also must ensure six feet of distance between workers and, if this is not possible, to erect barriers between employees.
The standard also requires employers to provide workers with paid time off to get vaccinated and to recover from any side effects. Employees with coronavirus or who may be contagious have to either work remotely or be separated from other workers, where possible, or be given paid time off up to $1,400 per week. For employers with fewer than 500 employees, tax credits provided in the American Rescue Plan Act can be used to provide for employer reimbursement.
Fully vaccinated workers are exempt under the emergency temporary standard from masking, distancing and barrier requirements when in well-defined areas where there is no reasonable expectation that anyone will be present with suspected or confirmed coronavirus.
The emergency temporary standard becomes effective upon its publication in the Federal Register, and employers must comply with most provisions within 14 days and the remaining provisions within 30 days.
In addition to the health care emergency temporary standard, OSHA issued updated guidance to assist employers and workers in other industries with protecting workers who are not yet vaccinated, with special focus on industries such as meat processing, manufacturing, grocery and other retail where there are prolonged close contacts.
Paycheck Fairness Act Doesn’t Advance in the Senate
The House of Representatives had previously passed the Paycheck Fairness Act (H.R. 7, S. 205), but in the Senate, the bill lacked the 60 votes necessary to end a filibuster and consider the legislation.
The bill would modify the “factor other than sex” defense that is part of the Equal Pay Act of 1963 to provide that it would apply only “if the employer demonstrates that such factor (i) is not based upon or derived from a sex-based differential in compensation; (ii) is job-related with respect to the position in question; (iii) is consistent with business necessity; and (iv) accounts for the entire differential in compensation at issue. Such defense shall not apply where the employee demonstrates that an alternative employment practice exists that would serve the same business purpose without producing such differential and that the employer has refused to adopt such alternative practice.” The bill would prohibit retaliation for disclosure of salary information, for asking about the wage practices of the employer or disclosing their own wages to co-workers. Employers would be prohibited from requesting wage information from applicants — several states and localities have passed laws that prevent employers from obtaining this information. The bill would provide for compensatory and punitive damages.
Absent a change in the current filibuster rules, this legislation is not likely to pass during this session.
Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at email@example.com.