SCOTUS: Biden Administration’s Vaccine Mandate: Yay or Nay– 2 Cases; 2 Scenarios

Supreme Court of The United States

Supreme Court of The United States: The Full Bench of the SCOTUS on 13th January, 2022 gave its decision on the Vaccine Mandates issued for large employers and healthcare workers. While the Court with a ratio of 6:3, put a stay on the Biden Administration’s vaccine-or-test rule for large private employers; however, at the same time the Bench with a ratio of 5:4, upheld a regulation issued by the Secretary of Health and Human Services that mandated vaccines for employees at hospitals, nursing homes and other healthcare providers.

National Federation of Independent Businesses v. Dept. of Labor, Occupational Safety and Health Administration  

Background: In the backdrop of unprecedented challenges posed by Covid19 pandemic and in view of the rising cases, on September 9, 2021, President Biden announced a new plan to require more Americans to be vaccinated. The Secretary of Labor, acting through the Occupational Safety and Health Administration (hereinafter OSHA), thus enacted a vaccine mandate for USA’s work force. The mandate was applicable to roughly 84 million workers, covering approximately all employers with at least 100 employees. It required that covered workers receive a COVID–19 vaccine, and it pre-empts contrary state laws. The only exception is for workers who obtain a medical test each week at their own expense and on their own time, and also wear a mask each workday.

The Congress enacted the Occupational Safety and Health Act in 1970 in order to – ensure occupational safety—“safe and healthful working conditions.” by enforcing occupational safety and health stand­ards promulgated by the Secretary. Such stand­ards must be “reasonably necessary or appropriate to pro­vide safe or healthful employment.” They must also be developed using a rigorous pro­cess that includes notice, comment, and an opportunity for a public hearing.

The Challenge: OSHA’s ‘never done before’ Vaccine Mandate was challenged by many States, businesses, and nonprofit organizations in Courts of Appeals across USA. The Fifth Circuit initially entered a stay, but when the cases were consolidated before the Sixth Circuit, that court lifted the stay and allowed OSHA’s rule to take effect. The challengers contended that OSHA’s mandate exceeds its statutory authority and is therefore unlawful.

Key Observations by the Majority: The Majority comprising of John Roberts, CJ., Samuel Alito, Clarence Thomas, Brett Kavanaugh, Neil Gorsuch (concurring) and Amy Coney Barret, JJ., focused upon the core issue of institutional competence- whether the 1970 Act plainly authorizes the OSHA’s mandate. It was observed that, “Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided”. Mandating roughly 82 million Americans “to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense” is a major encroachment in the life and health of a vast number of employees.

The majority observed that the Act empowers the Secretary to set workplace safety standards, not broad public health measures; furthermore no provision of the Act addresses public health more generally, which falls outside of OSHA’s sphere of expertise. “Although COVID–19 is a risk that occurs in many workplaces, it is not an oc­cupational hazard in most. COVID–19 can and does spread at home, schools, sporting events, and gatherings. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable dis­eases”; therefore permitting OSHA to regulate the hazards of daily life, would significantly ex­pand OSHA’s regulatory authority without clear congres­sional authorization.

The majority further noted that OSHA indeed has the authority to regulate occu­pation-specific risks related to COVID–19, however, their indiscrimi­nate approach fails to take account of a crucial distinction between occupational risk and risk more generally and ac­cordingly the vaccine mandate takes on the character of a general public health measure, rather than an occupational safety or health standard.

Lastly, the majority noted that in its half century of existence, OSHA has never 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”.

With the aforementioned observations, the Court put a stay on OSHA’s Covid–19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61402.

The Dissent:  Stephen Breyer, Sonia Sotomayor and Elena Kagan, JJ., dissented with the decision to stay the vaccine mandate for the work force. Expressing their disappointment with the reasoning applied by the majority, the Judges observed that OSHA – an agency charged by Congress with safeguarding employees from workplace dangers has decided that action is needed by thoroughly evaluating the risks that the disease poses to workers across all sectors of the economy. It has considered the extent to which various pol­icies will mitigate those risks and the costs those policies will entail. After detailed considerations it landed on an approach that encourages vaccination, but allows employers to use masking and test­ing instead. In doing all this, it has acted within the four corners of its statutory authorization. OSHA, has responded in the way necessary to alleviate the dan­ger” that workplace exposure to the “new hazard” the COVID–19 poses to employees across the USA,for OSHA is responsible to the President, and the President is responsible to—and can be held to account by—the American public”.

The dissenting Judges also stated that as disease and death are raging due to the pandemic, this Court’s decision to tell off the concerned agency that it cannot respond in the most effective way possible, undercuts the capacity of the responsible federal officials, acting well within the scope of their au­thority, to protect American workers from grave danger. Who decides how much protection, and of what kind, American workers need from COVID–19? An agency with expertise in workplace health and safety, act­ing as Congress and the President authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes?

Joseph R. Biden Jr. v. Missouri

Background: The instant matter dealt with the same issue, but this time the concerned sector was healthcare.  In November 2021, the Secretary of Health and Human Services announced that, in order to receive Medicare and Medicaid funding, participating facilities must ensure that their staff (unless exempt for medical or religious reasons) are vaccinated against Covid–19. A facility’s failure to comply would lead to monetary penalties, denial of payment for new admis­sions, and ultimately termination of participation in the programs.

Submissions: The Secretary submitted before the Court that the interim rule was issued after finding that vaccina­tion of healthcare workers against COVID–19 was neces­sary for the health and safety of individuals to whom care and services are furnished. That deter­mination was based on data showing that COVID–19 can spread rapidly among healthcare workers and from them to patients, and that such spread is more likely when healthcare workers are unvaccinated and any further delay would endanger patient health and safety, given the spread of the Delta variant and the upcoming winter season.

The States of Louisiana and Missouri challenged the mandate terming it as arbitrary and impulsive and that the Secretary examine the relevant data before imposing the vac­cine mandate instead of a testing mandate. They also contended that in issuing the mandate, the Secretary departed from the agency’s prior approach of merely encouraging vaccination.

Key Observations: For this matter, Chief Justice John Roberts and Justice Brett Kavanaugh along with Stephen Breyer, Sonia Sotomayor and Elena Kagan, JJ., noted the overwhelming support that the vaccine mandate got from the healthcare workers and public health officials.

Deliberating upon the question that whether the Secretary had exceeded his statutory authority in issuing the vaccine mandate in order ensure eligibility for Medicare and Medicaid dollars, the majority stated that Congress has authorized the Secretary to impose conditions on the receipt of Medicaid and Medicare funds that “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services”. Given the highly dangerous and contagious nature of Covid19, especially for the patients, the Secretary determined that a COVID–19 vaccine man­date will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients and concluded that a vaccine mandate was “necessary to pro­mote and protect patient health and safety” in the face of the ongoing pandemic.  Ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is con­sistent with the fundamental principle of the medical pro­fession.

The Majority concluded their observations by holding that the Secretary of Health and Human Services did nothing out of his statutory purview in issuing the vaccine mandate fir the healthcare workers. “The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not con­ferred upon it. At the same time, such unprecedented cir­cumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have”.

The Dissent: Meanwhile Amy Coney Barret, Samuel Alito, Clarence Thomas and Neil Gorsuch, JJ., dissented on the matter. Commenting upon how the Executive ‘already touches nearly every aspect of Americans’ lives’, the Judges noted that Majority’s decision will “ripple through administrative agen­cies’ future decision making” because if Congress had wanted to grant the concerned authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly.

In conclud­ing that the Secretary had good cause to avoid notice-and-comment rulemaking while issuing the vaccine mandate, “the Court shifts the presumption against com­pliance with procedural strictures from the unelected agency to the people they regulate. Neither CMS nor the Court articulates a limiting principle for why, after an un­explained and unjustified delay, an agency can regulate first and listen later, and then put more than 10 million healthcare workers to the choice of their jobs or an irre­versible medical treatment”.

[NFIB v. OSHA, Nos. 21A244 and 21A247 and Biden v. Missouri, Nos. 21A240 and 21A241, decided on 13.1.2022]


Sucheta Sarkar, Editorial Assistant has reported this brief.

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