Friday, January 14, 2022

SCOTUS: A Tale of Two Vaccine Mandates

Oh, that tricky Supreme Court - they totally faked us out! They announced that new opinions would be released at 10:00 AM, and then only released the utterly un-newsworthy opinion in Babcock v. Kijakazi (that said, it did address an obscure employment law-ish issue, holding "Civil-service pension payments based on employment as a dual status military technician are not payments based on 'service as a member of a uniformed service' under [the Social Security Amendments of 1983]"). 

But, you probably don't care about dual-status military technician social security benefits do you? You want the vax mandates! Out of nowhere, and without warning, SCOTUS dropped both vaccine mandate opinions:

OSHA Vaccine or Test Mandate

First up, a per curiam opinion in NFIB v. OSHA. As background, OSHA issued an Emergency Temporary Standard (ETS) generally requiring employers with 100 or more employees to require their employees to either get vaccinated against COVID-19 or subject themselves to regular testing. The Fifth Circuit granted a stay, effectively pausing the ETS. But, through a weird statutory procedural quirk, several challenges were consolidated and then assigned via a lottery to the Sixth Circuit, which lifted the stay and cleared the way for the ETS to go into effect. This prompted several parties to seek a stay from the Supreme Court. 

Stay granted. Bottom line: SCOTUS concluded that the challengers "are likely to prevail" and stayed (paused) the ETS. The Supreme Court focused on the nature of the powers delegated to OSHA through the OSH Act - specifically, OSHA can set workplace standards for occupational safety to protect employees from work-related dangers. See where this is going?  

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, in schools, during sporting events, and everywhere else that people gather. 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. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.

If it's possible to distill this issue down to a sentence, it's this: "Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly." Now, this is not a final ruling on the merits, but the writing certainly appears to be on the wall. 

Justice Gorsuch (joined by Justices Thomas and Alito) penned an interesting concurring opinion mixing the major question doctrine and the nondelegation doctrine:

On the one hand, OSHA claims the power to issue a nationwide mandate on a major question but cannot trace its authority to do so to any clear congressional mandate. On the other hand, if the statutory subsection the agency cites really did endow OSHA with the power it asserts, that law would likely constitute an unconstitutional delegation of legislative authority.

Justices Breyer, Sotomayor, and Kagan dissented. So, for now the OSHA standard is on hold. OSHA has issued a statement on its website

CMS Healthcare Worker Vaccine Mandate

Next up, Biden v. Missouri. The Centers for Medicare and Medicaid Services (CMS) issued a rule generally requiring healthcare workers at facilities that receive Medicare and Medicaid funding to get vaccinated (allowing for medical and religious exceptions). Slightly different background in this case as the lower courts had issued injunctions pausing the rule and the government asked SCOTUS to stay the injunctions. 

Bottom line: Stay granted - but in this case that means the injunctions are stayed. Think of it as a double negative - the injunction was negating the rule, but now the stay is negating the injunction, so the bottom line is that the rule can move forward. 

Monday, December 27, 2021

SCOTUS: Fine, we'll look at a couple of the vaccine mandates.

Justice Kavanaugh received
the petitions and referred
them to the full court.

On December 22nd, the Supreme Court issued a pair of orders (here and here) scheduling oral arguments on two vaccine mandates for January 7, 2022: (1) the OSHA vaccine or test mandate for employers with more than 100 employees; and (2) the CMS vaccine mandate for healthcare workers. 

Now, let's temper our expectations here by noting that the petitioners are seeking a stay pending a ruling by the lower courts on the actual merits. In other words, SCOTUS will not be issuing a final ruling on whether the mandates are lawful. That said, decisions on injunctive relief are often chock-full of signals as to the judges' views on the ultimate question.

Meanwhile, OSHA has already set some enforcement deadlines: 

OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.

OSHA is also in the midst of taking comments to turn the emergency standard into a permanent standard. 

For employers, it's just more of the same uncertainty. The mandates are on for now, but will SCOTUS turn them off? Either way, we'll be waiting for even more litigation to unfold. 

Monday, December 20, 2021

The OSHA vaccine mandate is back on (for now)

 The Fifth Circuit stayed implementation of the OSHA vaccine mandate, but then the challenges were consolidated and the Sixth Circuit won the lottery to decide the consolidated case. On Friday, the Sixth Circuit dissolved the stay, clearing the way for OSHA to implement the mandate (enjoy the 57-page opinion here). 

So, what's next for OSHA? You can read their latest update here, but the bottom line is: 

Not official use.
OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.

Of course, the Sixth Circuit panel is not the final word. Several of the challengers have already sought Supreme Court review. SCOTUSblog has the rundown.  

Wednesday, December 15, 2021

EEOC updates guidance to address COVID-19 and the definition of "disability"

The EEOC just keeps updating the ol' What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws guidance, most recently by adding a new section called COVID-19 and the Definition of “Disability” Under the ADA/Rehabilitation Act.

Not official use.
So, is COVID-19 a disability under the ADA? Get ready for it, because we've got an attorney's hall of fame all-time classic coming up... it depends!

An individualized assessment is necessary to determine whether the effects of a person’s COVID-19 substantially limit a major life activity. This will always be a case-by-case determination that applies existing legal standards to the facts of a particular individual’s circumstances.
What? Did you think the ADA would suddenly be clear and easy to apply to your circumstances in the case of COVID-19? 

Look, these issues can be tricky. This new EEOC guidance may be helpful. At the risk of sounding too self-serving, employers may wish to contact their trusted employment lawyer for advice. 

Wednesday, December 8, 2021

Nationwide federal contractor vaccine mandate injunction

Yesterday, the U.S. District Court for the Southern District of Georgia issued an order in Georgia v. Biden, concluding:

[T]he Court ORDERS that Defendants are ENJOINED, during the pendency of this action or until further order of this Court, from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America.

A nationwide injunction! If you've been tracking the various vaccine mandates... well, let's just say they're not doing very well. The CMS mandate (for healthcare providers) has likewise been blocked nationwide. The headliner, i.e., the OSHA mandate, has likewise been enjoined and paused by OSHA pending a consolidated review (of a bunch of cases) at the Sixth

Why as the federal contractor mandate blocked? Well, the gist of it is that Pres. Biden relied on the Procurement Act, and the Court concluded that the Procurement Act did not authorize the president to issue such a mandate. A few of the key steps:

1. The Court recognizes that the President is authorized to set procurement policy.

The Procurement Act does "emphasiz[e] the leadership role of the President in setting Government-wide procurement policy on matters common to all agencies, Congress intended that the President play a direct and active part in supervising the Government’s management functions.”

2. But this is more like health policy.

"[T]he direct impact of EO 14042 goes beyond the administration and management of procurement and contracting; in its practical application (requiring a significant number of individuals across the country working in a broad range of positions and in numerous different industries to be vaccinated or face a serious risk of losing their job), it operates as a regulation of public health."

3. If Congress wanted to give the President this kind of vast power, they would have "clearly" said so.

"Congress is expected to 'speak clearly' when authorizing the exercise of powers of 'vast economic and political significance.'" 

"It will also have a major impact on the economy at large, as it limits contractors’ and members of the workforce’s ability to perform work on federal contracts. Accordingly, it appears to have vast economic and political significance."


In other words, the President can set procurement policy but a vaccine mandate seems more like health policy - a health policy with "vast economic and political significance." Congress has not "clearly" given him this power, so the mandate is enjoined. Although the mandate is blocked nationwide, this is just one district court's opinion. We will likely see additional opinions an appeals. 

Friday, November 19, 2021

EEOC updates COVID-19 guidance to address retaliation

The EEOC just keeps updating its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws guidance. Check out the latest addition, Section M. Retaliation and Interference

Not official use.
Honestly, this just looks like pretty basic retaliation stuff, but with a helping of COVID-19-related hypos. For example:

  • "an Asian American employee who tells a manager or human resources official that a coworker made abusive comments accusing Asian people of spreading COVID-19 is protected from retaliation for reporting the harassment." 
  • "the EEO laws prohibit an employer from retaliating against an employee for requesting continued telework as a disability accommodation after a workplace reopens."
  • "requesting religious accommodation, such as modified protective gear that can be worn with religious garb, is protected activity."
This could be a helpful resource or reminder for employers though. 

Monday, November 8, 2021

OSHA vaccine mandate challenges incoming!

Not official use.
A number of legal actions have already been filed trying to strike down OSHA's vaccine mandate. The first response came from the Fifth Circuit, which issued an emergency stay citing the petitioners' belief that there are "grave statutory and constitutional issues." An unusual statutory provision (29 U.S.C. §655) allows parties "adversely impacted by [the] standard" to seek judicial review directly at the Circuit Court of Appeals where they reside. Based on commentary I've read, the multiple cases will be consolidated into one action and assigned to a circuit based on lottery. 

What does all of this mean for employers? Right now... nothing really. It's an emergency stay that will be temporary. Presumably, we'll see a consolidation and whichever court gets the case will make a ruling that matters (although even then, we have the potential for SCOTUS review). Some employers may roll the dice and hope for a favorable ruling, but I'd hate to bet on that outcome and be wrong!

To get a flavor for the arguments in the Fifth Circuit case, check out the Petitioners' Emergency Motion to Stay Enforcement Pending Review and Expedite Review. You'll note that the focus is on OSHA's authority to mandate vaccines pursuant to the statute - the focus is not on individual liberty. We'll probably see some arguments regarding individual freedom to self-determination on health and medical issues, but I doubt that kind of "substantive due process" argument will win the day. The statutory authority arguments appear to be much stronger.