By: Taylor Bell –
From executive orders to federal agency rules and Supreme Court decisions, the United States is in no short supply of popcorn-worthy drama regarding the enforceability of vaccine mandates. Right now, we know blanket vaccine mandates will fail, but targeted vaccine mandates to healthcare industries will likely prevail.
A Brief Snapshot
The vaccine mandate saga began on January 21, 2021, when President Biden issued an executive order directing the Occupational Safety and Health Administration (“OSHA”) to create a rule that would require employers with 100+ employees to mandate employee vaccination or weekly testing and mask requirements. In response to President Biden’s Executive Order, OSHA passed the COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) on November 5, 2021. That same day, the Centers for Medicare and Medicaid Services (“CMS”) passed a vaccine-only rule for all eligible staff at Medicare facilities (“Health Care Staff Rule”).
Almost immediately, twenty-seven states challenged the ETS, and twenty-four states challenged the Health Care Staff Rule in various federal district courts. The challenging states hoped to stop enforcement of the ETS and Health Care Staff Rule within their borders. Agreeing with the challenging states, the federal district courts temporarily stopped OSHA and CMS from enforcing the ETS and Health Care Safety Rule. The Biden administration immediately appealed. The federal appellate courts disagreed whether to stop or allow the ETS and Health Care Safety Rule.
The U.S. Supreme Court agreed to hear oral argument for both the ETS and Health Care Staff Rule on January 7, 2022. Six days later, the U.S. Supreme Court issued two separate opinions. In one, the U.S. Supreme Court prohibited OSHA from enforcing the ETS. In the other, the U.S. Supreme Court allowed CMS to enforce the Health Care Staff Rule.
Following the U.S. Supreme Court’s decisions, OSHA withdrew its ETS on January 25, 2022.
Why the Difference?
Why did the U.S. Supreme Court stop the ETS but allow the Health Care Staff Rule? The U.S. Supreme Court focused on the scope of authority Congress extended to OSHA and CMS. On one hand, Congress authorized OSHA to address specific workplace safety standards, not universal risks. On the other hand, Congress authorized CMS to set requirements necessary for the health and safety of individuals receiving services from the Medicare or Medicaid programs.
Therefore, a broad public health regulation affecting around 84 million workers was outside OSHA’s authority. But, a targeted vaccine mandate limited to staff in federally funded facilities protecting vulnerable populations was within CMS’s authority. The U.S. Supreme Court stopped the ETS but allowed the Health Care Staff Rule.
What’s Next in the Saga?
Everyone, the U.S. President, Congress, federal agencies, states, employers, and employees, has an opinion and wants their opinion to “win”. After the U.S. Supreme Court blocked OSHA’s ETS, the U.S. Secretary of Labor, Marty Walsh, stated he was “disappointed in the court’s decision” and “urge[d] all employers to require workers to get vaccinated or tested weekly.” OSHA plans to create a targeted version of the ETS that identifies specific industries and jobs where the virus poses a special danger, which would likely be within the scope of authority Congress extended to OSHA.
Additionally, the vaccine mandate saga extends to state governments. For example, thirteen states, including Texas, expressly ban vaccine mandates for employees. Other states created special vaccine mandates for healthcare workers. These requirements range from mandatory vaccination and booster to mandatory vaccination with a testing and masking alternative. In most of these states, the cost of noncompliance is termination. Further, many of the state-issued health care vaccine mandates reach a wider group of workers than the CMS, which is limited to facilities regulated under the Medicare Conditions of Participation.
The vaccine saga is far from over, and as mandates are challenged in courts across the country, our understanding of what is permissible will evolve as states, employers, and agencies challenge competing views in court.
It is clear no matter who sets a vaccination rule, someone will be unhappy and challenge the rule in court, and it will be up to the courts to decide what will be allowed to stand. However, it is also likely the virus may be solved well before the numerous legal disputes work their way through the court system.
About the authors: Ron is the founder of Holmes Firm PC. Taylor is a candidate for her Doctorate of Jurisprudence degree from SMU Dedman School of Law, May 2022.
We offer the foregoing to you not as legal advice (please consult with your own attorney regarding your specific facts) but as an overview. If you desire to know more about how issues like this can affect your business, please contact Ron Holmes at 469.916.7700 ext. 105 or via email.