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Jan 18, 2022 | Neil Reichenberg, HRCI Contributing Writer

Vaccine Mandate Litigation Update

The United States Supreme Court has issued a series of rulings on vaccine requirements. In one case, the court blocked a vaccine or testing/masking requirement issued by the Occupational Safety and Health Administration (OSHA). However, for healthcare workers, the Supreme Court lifted an injunction preventing the implementation of a requirement issued by the Department of Health and Human Services (HHS) that the staff of facilities receiving Medicare and Medicaid funding need to be vaccinated against COVID-19. The court has allowed in three separate cases states to impose healthcare worker COVID-19 vaccination requirements.

Supreme Court Blocks OSHA Vaccine Requirement – The United States Supreme Court issued a stay in the case of National Federation of Independent Business, et. al. v. US Department of Labor, Occupational Safety and Health Administration, et. al. preventing implementation of a  requirement in the emergency temporary standard (ETS) issued by the Occupational Safety and Health Administration (OSHA) that employees who work for employers with at least one hundred employees need either to be vaccinated against COVID-19 or be tested weekly and wear masks. In finding that OSHA lacked the statutory authority to issue the ETS, which was estimated to impact about 84 million employees, the Supreme Court majority stated the OSHA “Act empowers the Secretary [of Labor] to set workplace safety standards, not broad public health measures” and that this would be “a significant encroachment into the lives – and health – of a vast number of employees.” While the risk of COVID-19 occurs in many workplaces, the majority advised that “it is not an occupational hazard in most.”

Although the majority believed that the ETS would be a significant increase in OSHA’s regulatory authority absent clear authorization from Congress, it did indicate that “Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible.” The majority cited the following two examples where OSHA could issue regulations due to the occupation-specific risks related to COVID-19 – researchers who work with the COVID-10 virus and those who work in “particularly crowded or cramped environments.” The majority distinguished those workplaces from the “everyday risk of contracting COVID-19 that all face.” The majority believed that the action by OSHA was unprecedented, and it had never “adopted a broad public health regulation of this kind – addressing a threat that is untethered, in any causal sense, from the workplace.”

In a dissenting opinion, Justices Breyer, Kagan, and Sotomayor stated that OSHA’s primary mission is to protect employees from grave danger. They concluded “In our view, the Court’s order seriously misapplies the applicable legal standards. And in so doing, it stymies the Federal Government’s ability to counter the unparalleled threat that COVID–19 poses to our Nation’s workers. Acting outside of its competence and without legal basis, the Court displaces the judgments of the Government officials given the responsibility to respond to workplace health emergencies.” The dissent noted that OSHA estimates over six months, the ETS would save over 6,500 lives and prevent over 250,000 hospitalizations. The dissent found that the majority “undercuts the capacity of the responsible federal officials, acting well within the scope of their authority, to protect American workers from grave danger.”

Supreme Court Allows the Federal Government to Require Healthcare Worker Vaccine Requirement – In a 5 – 4 decision, the United States Supreme Court in the case of Joseph R. Biden, President of the United States, et. al. v. Missouri, et. al. lifted injunctions preventing the implementation of an interim rule of the Department of Health and Human Services (HHS) requiring that facilities receiving Medicare and Medicaid funding must ensure that their staff are vaccinated against COVID-19 unless they are exempt for medical or religious reasons.

The interim rule was challenged in two US District Courts by different groups of states. Both District Courts found the rule defective and entered preliminary injunctions against its enforcement.  The US Court of Appeals for the Fifth Circuit and the US Court of Appeals for the Eighth Circuit denied the motion by HHS seeking to lift the injunctions.

In removing the injunctions, the majority noted that the HHS rule is within the authorities granted to it by Congress.  In ruling that the facilities covered by this rule need to ensure that their staffs are vaccinated against COVID-19, the majority stated, “a vaccination under these circumstances is a straightforward and predictable example of the health and safety regulations that Congress has authorized the Secretary [of Health and Human Services] to impose.” Further, the majority believed that “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.”

The dissenting opinion by Justices Thomas, Alito, Gorsuch, and Barrett was based on the belief that HHS lacked the statutory authority to issue a vaccine mandate. The dissent advised that the vaccine mandate would impact ten million healthcare workers and stated that “Had Congress wanted to grant CMS power to impose a vaccine mandate across all facility types, it would have done what it has done elsewhere—specifically authorize one.”

Supreme Court Refuses to Enjoin State Healthcare Workers Vaccine Mandate – The United States Supreme Court, in the case of Dr. A., et. al. v. Kathy Hochul, Governor of New York, et. al., decided not to grant an interim stay of the emergency New York State regulation requiring certain employees of healthcare facilities to be vaccinated against COVID-19. The Supreme Court vote was 6 – 3, and the majority did not issue a written opinion. The emergency regulation provided for a medical exemption but not for a religious exemption. The regulation was challenged by affected employees who stated that taking the COVID-19 vaccination violated their religious beliefs.

The emergency regulation is consistent with prior New York vaccination requirements for healthcare workers that did not include an exemption based on religious beliefs. The U.S. Court of Appeals for the Second Circuit which also denied the request to enjoin the vaccine mandate stated, “The State has an indisputably compelling interest in ensuring that the employees who care for hospital patients, nursing home residents, and other medically vulnerable people in its healthcare facilities are vaccinated against COVID-19, not just to protect them and those with whom they come into contact from infection, but also to prevent an overburdening of the healthcare system. Although Plaintiffs undoubtedly face a difficult choice if their employers deny religious accommodations—whether to be vaccinated despite their religious beliefs or whether to risk termination of their jobs—such hardships are outweighed by the State’s interest in maintaining the safety within healthcare facilities during the pandemic.”

Following the decision in the New York case, Justice Gorsuch denied a petition for an injunction in the case of Valdez v. Lujan Grisham that sought to prevent the State of New Mexico from requiring health care workers to be vaccinated against COVID-19. The Supreme Court’s actions are  consistent with its actions in a previous case, Does et. al. v. Mills, et. al., in which by a 6 – 3 vote, it refused to grant an injunction in a challenge to a similar vaccine requirement issued by the State of Maine. In that case, the United States Court of Appeals for the First Circuit denied a preliminary injunction to prevent the enforcement of a regulation by the State of Maine requiring workers in state licensed health care facilities to be vaccinated against COVID-19. Maine also only provided a medical exemption from the vaccination requirement.

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 neilreichenberg@yahoo.com.