Supreme Court Halts Vax-or-Test for Large Employers, Allow Vax Requirement for Healthcare Workers

In companion decisions, the U.S. Supreme Court split on the issue of mandatory vaccinations for workers, halting the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) for private sector employers with 100 or more employees and allowing the Centers for Medicare and Medicaid Services’ (CMS) emergency temporary standard for healthcare workers to move forward.

National Federation of Independent Business v. OSHA

In a rather predictable opinion splitting along the Court’s liberal and conservative lines, the Court in National Federation of Independent Business v. OSHA reasoned that while OSHA can regulate occupational dangers, it does not have the power to regular public health more broadly. “Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.” The Court noted that COVID-19 is not an occupational hazard but is instead a “kind of universal risk [that] is no different from the day-to-day dangers that all face …. 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.” Gorsuch and Alito had advanced this rationale in their questioning during oral argument on January 7, with Justice Alito suggesting that using the Occupational Safety and Health Act to impose a broad vaccine requirement was trying to “squeeze an elephant through a mousehole.”

Justices Gorsuch, Alito and Thomas concurred with the Court’s per curiam opinion, while Justices Sotomayor and Kagan filed a dissent.

Biden v. Missouri

The Court’s ruling on the CMS vaccination standard in Biden v. Missouri was a bit more surprising, though again foreshadowed during the January 7 oral argument. There, the Court relied upon specific statutory provisions in which Congress authorized the Secretary of Health and Human Services to promulgate, as a condition of a health care facility’s participation in Medicare and Medicaid programs, such “requirements as [he] finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.” The Court further stated that the vaccination mandate “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.’” In a nod to its opinion in the OSHA case, the Court acknowledged that while “[t]he challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it,” “such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.”

Justices Thomas, Alito, Gorsuch and Barrett dissented from the Court’s per curiam opinion.

What Happens Next?

The OSHA case will now move forward in the Sixth Circuit Court of Appeals for substantive consideration. Given the Supreme Court’s ruling and the fact that OSHA has previously lost five of six legal challenges to its safety and health standards, the outlook for the vaccination ETS is not good.

Pertinent to Illinois public sector employers, the Supreme Court’s vaccination rulings come less than a week after Illinois OSHA’s announcement that it was adopting the OSHA ETS and setting January 24, February 24 and March 25 compliance mileposts. Accordingly, the Illinois OSHA ETS would apply to public sector employers, including school districts. This afternoon, Illinois OSHA announced that it was staying enforcement of its vaccination ETS pending the outcome of the federal OSHA litigation:

Supreme Court Update

The Illinois Department of Labor is aware of the United States Supreme Court decision that was released on January 13, 2022 staying the Federal OSHA COVID-19 vaccination and testing emergency temporary standard.  Because IL OSHA’s preemptory rule incorporates the federal standard, IL OSHA will similarly stay enforcement of its rule while it monitors federal litigation and determines next steps. Please check back at our website for updates.

Illinois OSHA’s stay of its ETS does not impact the federal CMS vaccination standard.