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. 

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