The United States Supreme Court today granted emergency relief to stay implementation of the COVID-19 vaccine and testing mandate that requires larger employers to ensure that workers receive the COVID-19 vaccine or wear masks and get tested on a weekly basis. But the Court held that a separate mandate requiring vaccinations for an estimated 20 million healthcare workers can be enforced. 

The reasoning expressed by the majority in the OSHA case suggests the Court would strike down the vaccine mandate as unconstitutional if the measure is presented again.

Background on mandates

Under the Occupational Health and Safety Administration’s Emergency Temporary Standard, or ETS, employers with 100 or more employees were required to implement COVID-19 policies for their employees and provide paid time off for those receiving vaccinations and/or recovering from side effects. 

The mandate also required employers to collect information and maintain detailed records on their workforce’s vaccination status.  Lastly, the mandate required employees entering the workplace to either provide proof of vaccination for COVID-19 or provide weekly negative COVID-19 test results. 

Today’s rulings

In a 6-3 decision, the Court held that those challenging the ETS were likely to succeed on their argument that OSHA lacked the authority to promulgate the standard. The Court reasoned that OSHA is empowered to “set workplace safety standards, not broad public health measures.” 

The Court expressed concern that the ETS was drafted so broadly that it basically ignored workplace conditions and, instead, used the workplace to leverage increased vaccination among the general population. The Court further explained that allowing OSHA to regulate broadly “the hazards of daily living” would expand OSHA’s authority beyond the bounds Congress set for it. 

By contrast, the Court upheld the mandate from the Centers for Medicare and Medicaid Services that requires all employees at patient care organizations that receive Medicare or Medicaid funding to get vaccinated. That decision was 5-4, with Chief Justice John Roberts and Justice Brett Kavanaugh joining the liberal justices to uphold the CMS mandate, on the grounds that healthcare facilities that participate in Medicare and Medicaid have always been obligated to satisfy a host of conditions that address the safe and effective provision of healthcare — not simply workplace safety.

Implications

As a practical matter, this ruling means that employers do not have to worry about OSHA knocking on their door to enforce vaccination mandates any time soon.  However, this decision does not represent the final word on whether OSHA may enforce the ETS; it is merely a temporary order that stays enforcement of the rule by OSHA on an emergency basis until further review by lower federal courts (and likely the U.S. Supreme Court again), once the legal challenges to this rule can be fully laid out. 

However, the Court’s ruling and underlying reasoning strongly suggest that if/when this mandate is presented again for final review, the U.S. Supreme Court will likely strike down the mandate as unconstitutional.

_____

Matthew M. Ries is a business and employment lawyer with Harrington, Hoppe & Mitchell. He can be reached at (330) 392-1541 or at mries@hhmlaw.com.