Additional Thoughts on the Supreme Court’s Covid-19 Mandate Decisions

Not surprising were the Supreme Court’s decision to keep the Occupational Safety and Health Administration temporary vax-or-test standard in place, yet to allow the Center for Medicare and Medicaid Services mandate for vaccines for covered workers to come into effect. Although the CMS rule has a stricter vaccination policy (that does not permit a test and mask exception), the OSHA regulation was clearly more restrictive in other respects.  CMS Rule: 5-4 Court split This wasSurprising to me at least, it gives me cause to wonder if federal contractor mandates for vaccines will survive a Supreme Court review. Let me add a few observations.

In part, both decisions were based on agency practice and knowledge of respective statutes. The CMS decision was based on the Department of Health and Human Services “longstanding practice”, which imposes conditions upon facilities that participate in Medicare and Medicaid. These conditions include conditions that guarantee services are delivered safely and effectively. OSHA was ruled by the Court to be strikingly different from the OSHA workplace regulations. OSHA never tried to encourage employers to immunize employees, even when it was addressing disease contagion. OSHA’s bloodborne pathogen rule required OSHA to require employers to offer vaccinations. However, they did not make these mandatory nor impose any additional cost on workers who refuse to be vaccinated.

Per curiam opinions of the Court in NFIB v. OSHAHe echoed many concerns expressed by Chief Justice Roberts during oral argument. The opinion did not claim that OSHA ETS’s reasons for being granted by the Administration were pretextual. However, it cited Administration statements that indicated the rule was more an occupational safety measure and a public health one. According to the opinion, President Obama himself stated that OSHA rules were part of an “old plan” to make it mandatory for more Americans to get vaccinated.

The NFIB v. OSHAOSHA Rule was called a “vaccine mandate”, even though employers could allow employees to test and use masks as an alternate (which is why I refer to it as a ‘vax-or-test’ requirement). Interestingly enough, the Court’s characterization tracks that offered by OSHA itself, which said its rule required employers to adopt “a mandatory COVID–19
Employers who have adopted a policy that allows employees to wear masks and test every week are exempt from the “exception” clause. The implementing agencies described both OSHA and CMS as having vaccination requirements. However, the OSHA rule gave employers an alternative (albeit potentially more expensive) to the CMS policy. Does this make a difference? Although it is difficult to know, this certainly affected public discussion and framing of the policy.

Justice Gorsuch authored a separate concurendum in NFIB v. OSHA Adopting an aggressive position that is more in line with the Court’s percuriam. Justices Thomas and Alito were the only conservatives to sign this opinion. The split could be explained by the following: There is a possibility that the Gorsuch opinion raised constitutional issues about OSHA’s ability to delegate more than was necessary. This issue was largely ignored by the Court’s per-curiam. Although the discussion in the per curiam of the major question doctrine might be read as reflecting agency laws (principals-agent relations and how to interpret the extent of delegations from principal to agent), Justice Gorsuch constructed the doctrine to avoid constitutional violations. Gorsuch wrote: “If the subsection that the agency refers to really gave OSHA the power, then this law could be considered an unconstitutional delegation of legislative authority.” These broad statements were probably made by conservative justices. Any consideration of the constitutional limitations on the delegation of power to federal agencies must wait until a clear case is presented.

It is probable that the Environmental Protection Agency will be disappointed by the refusal of six justices to view the OSH Act authorizing the standard. They relied upon important questions considerations. West Virginia v. EPAThe Court will next month hear the case. This case addresses the scope of EPA’s authority to regulate greenhouse gases emissions from power plants. It also raises the main questions doctrine more strongly than the previous one. NFIB v. OSHA. If the OSH Act does not authorize OSHA to force vaccinations on large employers under the OSH Act, it is unlikely that five justices will uphold the D.C. Circuit’s wide interpretation of EPA’s authority under Section 111 is a broad one. [For more on the potential implications for WV v. EPA, see Dan Farber’s comments on Legal Planet.]

Because both of these cases were about stay requests, the case goes back to the lower courts. The language and reasoning in NFIB v. OSHAAlthough the OSHA rule has been implemented, it does not mean OSHA cannot do anything to stop the spread of Covid-19 at work. In its opinion, the Court makes it clear that OSHA still has the power to regulate conditions in workplaces that are at risk of spreading. OSHA didn’t do this with the ETS. The number of employees on the firm’s payroll determined whether the rule was applicable. This did not include the number in shared workspaces, regular or extended contact or any other factors that could be linked to spreading in the workplace. Thus OSHA was in the position of arguing that its rule was “necessary” to address the “grave danger” of Covid-19 among a 102-person salesforce working at distributed locations with relatively little close contact with one another, but was not “necessary” for a firm with 98 employees on a single shoproom floor.

Also, OSHA is allowed to establish permanent standards once notice and comment has been received. This is in addition to its ability to make emergency standards. Therefore, I wouldn’t be surprised if OSHA issued a spring rule focusing on working conditions that Covid-19 might pose the greatest threat. Such a rule may well survive judicial scrutiny.

It remains to be determined whether the CMS rule can be applied to all covered facilities. In a footnote, the Court stated that it could not apply to all covered facilities. Biden v. Missouri, Some facilities not covered by the rule are exempted from the most explicit support of the vaccine requirement. These include home infusion therapies suppliers and clinics for end-stage renal disease. Although this could be the beginning of a challenge to the vaccine requirement, it is not likely that such a challenge will have any significant impact. These employees represent less than 3 percent of the people covered under the vaccine requirement. The regulation also has an explicit severability clause, which means that any issue here cannot be applied to the whole rule. The Court concluded that there was no reason for the “infusion-clinic dog to wag his tail at the hospital dog.”