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Vaccine Mandate Update

14 Jan 2022 11:55 AM | Tony Dierkers (Administrator)

U.S. Supreme Court allows CMS vaccine mandate to go into effect, but blocks OSHA vaccine-or-test mandate

Consistent with predictions following the oral argument (see below), the U.S. Supreme Court in a 5-4 opinion allowed the Centers for Medicare & Medicaid Services vaccine mandate for health care workers to go into effect, but blocked the Occupational Safety and Health Administration’s vaccine-or-test mandate by a 6-3 vote. The court’s decisions mean that health care workers at facilities and at suppliers covered by the CMS regulation must be fully vaccinated or receive an approved medical or religious exemption by Feb. 28, 2022.

Court relies on congressional authority to protect patient health and safety to uphold the CMS mandate

In its opinion allowing the CMS vaccine mandate to go into effect, the court noted that CMS has broad powers to condition facilities’ participation in the Medicare and Medicaid programs on “requirements as [CMS] finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.” The court held that CMS reasonably concluded that a COVID-19 vaccine mandate was necessary to protect patient health and safety because “COVID-19 is a highly contagious, dangerous — and especially for Medicare and Medicaid patients — deadly disease.”

The court rejected the challengers’ arguments that the statute “authorizes [CMS] to impose no more than a list of bureaucratic rules regarding the technical administration of Medicare and Medicaid.” The court cited with approval CMS’ “longstanding practice” of using its statutory authority to regulate “the safe and effective provision of healthcare, not simply sound accounting.” For example, CMS regulations govern how long after admission a patient must be examined, and by whom; the procurement and transplant of solid organs; tasks that can be delegated by a physician to an advanced-practice provider; and the control of infectious diseases within a facility. Not only that, but CMS routinely regulates the qualifications and duties of health care professionals, justifying these regulations by its power to protect patient safety. Requiring a COVID-19 vaccine for health care workers, the court held, is ultimately no different.

The court recognized that the CMS vaccine mandate “goes further than what [CMS] has done in the past to implement infection control” but also that CMS “has never had to address an infection problem of this scale and scope before.” And the court noted that vaccine requirements are common in the health care setting and that “healthcare workers and public-health organizations overwhelmingly support” the CMS mandate, which “suggests that a vaccination requirement under these circumstances is a straightforward and predictable example of the ‘health and safety’ regulations that Congress has authorized [CMS] to impose.”

Finally, the court rejected the challengers’ claims that the CMS mandate was unlawfully issued without public participation and did not adequately consider alternatives or the available evidence. As for public participation, the court held that the impending winter flu season was sufficient good cause to dispense with advance notice and comment. And as for alternatives and evidence, the court held that CMS’ decisions were “within a zone of reasonableness” and should not be second-guessed by the courts. The court therefore stayed the preliminary injunctions imposed by the Missouri and Louisiana district courts blocking the CMS mandate.

The court’s decision confirms what we saw coming out of oral argument. First, the median justices made the difference. The court’s unsigned majority opinion was joined by Justice Breyer, Justice Sotomayor and Justice Kagan — and two of the three median justices Chief Justice Roberts and Justice Kavanaugh. Second, the court saw the CMS regulation as tailored to the threat COVID poses in the health care setting, whereas the OSHA rule was too indiscriminate in regulating all workplaces with 100+ employees. Third, the court understood that the long history of CMS infection-control regulations made the vaccine mandate an incremental step, not a sweeping new assertion of authority. And finally, the court cited the health care community’s strong support for vaccinating health care workers, making it clear CMS was properly exercising its powers to protect patients.

Court relies on major-questions doctrine to block OSHA vaccine-or-test mandate

As we also predicted from oral argument, however, the court saw the OSHA mandate as going too far. The court’s unsigned majority opinion was joined by all three median justices as well as Justices Thomas, Alito, and Gorsuch.

Invoking the major-questions doctrine, the court stated that it “expect[s] Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” And it held that OSHA’s vaccine-or-test mandate was a major question because it is “a significant encroachment into the lives—and the health—of a vast number of employees.” The Court further emphasized that this kind of OSHA mandate was unprecedented: “It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace. This lack of historical precedent, coupled with the breadth of authority that the Secretary now claims, is a telling indication that the mandate extends beyond the agency’s legitimate reach.”

The court then considered whether the Occupational Safety and Health Act “plainly authorizes” OSHA’s vaccine-or-test mandate, and held that it does not. The court viewed the Act as limited to “workplace safety standards, not broad public health measures.” To the court, although COVID-19 as a risk in many workplaces, it is not an “occupational hazard in most.” Allowing OSHA to regulate that “universal” risk of COVID, the court believed, “would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

The court did emphasize, however, that a more-limited vaccine-or-test mandate might pass muster. It stated that where COVID-19 “poses a special danger because of the particular features of an employee’s job or workplace, target regulations are plainly permissible.” OSHA, for instance, can “regulate risks associated with working in particularly crowded or cramped environments.” What OSHA cannot regulate, the court held, is “the everyday risk of contracting COVID-19 that all face.” The court therefore reimposed a nationwide stay blocking the OSHA vaccine-or-test mandate.

What’s next?

Technically, all the court did today was decide whether the mandates will go into effect while the courts of appeals consider the challenges to them. But at this point, the writing is on the wall: The court has five votes to uphold a CMS vaccine mandate and six votes to vacate an economy-wide OSHA vaccine-or-test mandate. So while the cases return to the courts of appeals for further proceedings, it is very unlikely that the courts of appeals will reach a conclusion different than the Supreme Court’s on the stay applications.

In fact, shortly after the Court released its decision, the White House issued a statement saying:

As a result of the Court’s decision, it is now up to States and individual employers to determine whether to make their workplaces as safe as possible for employees, and whether their businesses will be safe for consumers during this pandemic by requiring employees to take the simple and effective step of getting vaccinated. The Court has ruled that my administration cannot use the authority granted to it by Congress to require this measure, but that does not stop me from using my voice as President to advocate for employers to do the right thing to protect Americans’ health and economy. I call on business leaders to immediately join those who have already stepped up – including one third of Fortune 100 companies – and institute vaccination requirements to protect their workers, customers, and communities.

Given the Supreme Court’s rulings today and that statement, expect CMS to finalize the vaccine mandate in essentially the same form as the interim final rule. But any attempt to finalize an OSHA vaccine-or-test mandate similar to the emergency temporary standard enjoined today seems likely to be blocked, as the White House seems to have recognized.

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