Supreme Court re-freezes OSHA ETS implementing President Biden’s large-employer mandate but allows his healthcare mandate

In a pair of decisions released today, the Supreme Court (1) re-froze OSHA’s ETS that implemented President Biden’s large-employer mandate but (2) allowed the regulations to take effect that implemented President Biden’s healthcare vaccine mandate.

Why the different outcomes? In short, a majority of the Supreme Court held it depended on whether Congress had clearly authorized each agency to implement its regulations. In the healthcare case, the majority held, yes, the language of the Congressional statute at-issue had expressly authorized the Secretary of Health and Human Services to implement such a mandate:

Congress has authorized the Secretary to impose conditions on the receipt of Medicaid and Medicare funds that “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.” 42 U. S. C. §1395x(e)(9).* COVID–19 is a highly contagious, dangerous, and—especially for Medicare and Medicaid patients—deadly disease. The Secretary of Health and Human  Services determined that a COVID–19 vaccine mandate will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients. 86 Fed. Reg. 61557–61558. He accordingly concluded that a vaccine mandate is “necessary to promote and protect patient health and safety” in the face of the ongoing pandemic. Id., at 61613. The rule thus fits neatly within the language of the statute. After all, 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.” Florida v. Department of Health and Human Servs., 19 F. 4th 1271, 1288 (CA11 2021).

However, a majority of the Supreme Court held that Congress had not similarly authorized OSHA to implement such a mandate. In particular, the majority noted that coronavirus is a pandemic, affecting individuals everywhere, it is not unique to workplaces. The majority found no statutory language that would authorize OSHA to implement a vaccine mandate simply because some exposure, even a significant exposure, may be found in workplaces.

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.

The majority noted OSHA could adopt narrower regulations implementing vaccine mandates for jobs that might have coronavirus-specific risks, such as “particularly crowded or cramped” workplaces.

The Supreme Court’s decisions left a very important question of administrative law to be resolved in further cases. A fraction of the majority, led by Justice Gorsuch, wrote a concurrence to the majority’s OSHA opinion in which he addressed two doctrines of administrative law: (1) The major questions doctrine that says so-called “major questions” of public policy must be reserved for decision by legislatures and cannot be resolved by bureaucratic agency fiat and (2) the nondelegation doctrine that basically prohibits Congress from delegating to agencies its sovereign authority over issues like that. Justice Gorsuch’s concurring opinion characterized the majority’s decision as having applied the major questions doctrine, and while the majority’s opinion is arguably consistent with that doctrine, it is noted that the majority did not expressly articulate it. Therefore, an open question remains whether a majority of the Supreme Court would adopt or at least apply with vigor these two doctrines.

Notwithstanding that question, the majority decisions in today’s cases are clear indicators to the lower courts that the Supreme Court believes the OSHA ETS is unlawful and the healthcare rule lawful. While both will continue to be litigated, it would seem unlikely that lower courts will revive the OSHA ETS after today’s rulings.

Employers are reminded of the status of other vaccine mandates, including the following:

• President Biden’s government-contractor vaccine mandate remains frozen.
• Although the government contractor mandate is frozen, President Biden’s order that various federal buildings, bases and properties implement their own vax-or-test rules  arguably remains in effect. A number of federal properties around the country have begun implementing the requirement.
• Likewise a number of private businesses and landowners have adopted their own mandate vaccines or vax-or-test rules. Companies wishing to do so are reminded to review potentially contrary state laws.