Vaccines: Will Government Mandates Be Found Supreme?

As readers of the KCNF blog know, we have written several times about the federal government’s effort to control the COVID pandemic through vaccine mandates. First, federal employees were told to be vaccinated or tested; that requirement was eventually modified to eliminate the testing (except for those who may be excused from vaccination on medical or religious grounds). Then, the Department of Health and Human Services (HHS) ordered health care workers to be vaccinated (subject to the medical and religious exceptions) to protect themselves and their patients. Finally, the Occupational Health and Safety Administration (OSHA) in the Department of Labor issued rules requiring all companies with 100 or more employees to impose vaccination or weekly testing.  Not surprisingly, there have been court challenges to the HHS and OSHA requirements. On January 7, 2022, the United States Supreme Court will hear arguments on whether the Federal government has the authority to impose vaccination and/or testing requirements for COVID-19, with the consequence to the employees of potentially losing their jobs should they refuse to comply.

The first case involves an OSHA regulation that was issued on November 5, 2021. This regulation requires all private employers across the nation with 100 or more employees to require their employees to either be fully vaccinated by January 10, 2022, or be tested weekly for COVID-19 and always wear a mask while at work. Testing for those who are not fully vaccinated must go into effect by February 9, 2022. The regulation includes an exception for employees who work alone or who mostly work outside. As with other OSHA regulations, an employer found to be not in compliance with the regulation can be fined up to $13,653 per violation (i.e., per non-complying employee).

After some skirmishing over which court would hear the OSHA challenges (suits were filed all over the country), a panel of three judges in the Sixth Circuit Court of Appeals ruled 2-1 that the OSHA regulation would go into effect. Several business interests and several states (mostly Republican) immediately asked the Supreme Court to block that decision while the issue was considered in more detail.

The second group of cases involves a rule promulgated by the Center for Medicaid and Medicare Services(“CMS”), part of HHS, requiring the vaccination of all health care workers who are employed at a medical facility that receives federal funding for Medicare or Medicaid. Under this regulation, all health care workers are required to have their first dose of vaccine by December 31, 2021, and be fully vaccinated by January 4, 2022. A district court in Louisiana, representing 14 states, and another in Missouri, representing 10 additional states, issued preliminary injunctions halting enforcement of the CMS regulation. The federal government promptly asked the Supreme Court to block those decisions, as well.

These cases turn on whether the federal agencies in question have the legal authority to issue the regulations at issue. In other words, given existing federal statutes, are these decisions properly made by a federal agency, or are they reserved to the states as provided by the Tenth Amendment to the Constitution?

The Occupational Safety and Health Act of 1970 (“OSHA Act”) is a federal law permitting OSHA to regulate workplace safety. OSHA can issue regulations after a notice and comment period, which takes an average of 93 months.  Of particular importance here, the Act also permits OSHA to issue an “emergency temporary standard” regarding workplace health or safety, without going through the lengthy notice and comment process, if the agency determines that the standard is “necessary” to protect workers from a “grave danger from exposure to substances or agents determined to be toxic or physically harmful.” Whatever we believe about the wisdom of vaccination against COVID, the questions the Supreme Court will decide are: does the vaccine mandate meet the requirements of an “emergency temporary standard”; is the COVID-19 virus an “agent” that is “physically harmful”; does the COVID virus pose a “grave danger from exposure”; and, fundamentally, is the OSHA regulation requiring vaccination of all employees “necessary”?

Similarly, Congress has authorized the Secretary of HHS, through CMS, to “require facilities voluntarily participating in Medicare or Medicaid programs to meet health and safety standards to protect patients.”  42 U.S.C. 1396. Does this language specifically authorize the CMS to require COVID-19 vaccinations for health workers? Was there good cause for CMS to publish the rule without advance notice and comment (which takes time)?

Lurking in the background is the “major questions doctrine,” which will be argued by the opponents of the OSHA and CMS regulations. In the past, the Supreme Court has used this doctrine to halt agency regulations that a majority of the Court found too ambitious. In Utility Air Regulatory Group v. EPA (2014), for example, the Court stated that “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.” The parties opposing the vaccine mandates argue that neither the OSH Act nor the Medicare/Medicaid Acts speak clearly enough to justify COVID-19 vaccine requirements.

On the other hand, the Sixth Circuit addressed the doctrine in its decision on the OSHA requirement, finding that “The record establishes that COVID-19 has continued to spread, mutate, kill, and block the safe return of American workers to their jobs. To protect workers, OSHA can and must be able to respond to dangers as they evolve.” Moreover, as the court noted, the degree to which employees are threatened by workplace issues is a question typically left to the expertise of the agency charged by Congress with their protection. (The federal government makes that identical argument in connection with the CMS requirements.)

Significantly, the mandates governing federal employees have not yet been successfully challenged. When employees actually are discharged or suspended without pay for violating the mandates and appeal those actions, we may begin to see how the above issues are handled for the rank and file. In the meanwhile, CSPAN for the interested, will give us a clue regarding the likely outcome.