By: Brandy A. Boone, General Counsel of the Medical Association of the State of Alabama
The US Supreme Court (“the Court”) recently released differing opinions on the two-part Biden administration vaccine mandate. In Biden v. Missouri1, the Court lifted a US District Court’s stay on enforcement of the Department of Health and Human Services’ (HHS) rule amending CMS Conditions of Participation to require covered staff to be vaccinated for COVID-19. The Court took the opposite approach in National Federation of Independent Business v. Department of Labor2, by enjoining the enforcement of an OSHA standard requiring employers with at least 100 employees to require covered workers to be vaccinated.
The CMS rule, more commonly known as the healthcare worker vaccine mandate, was issued as an interim final rule for facilities regulated by CMS Conditions of Participation, including hospitals and long-term care facilities. The rule requires covered facilities to have a plan for vaccinating all staff, a plan for the provision of medical and religious exemptions, and a plan for tracking and monitoring vaccinations and exemptions. Because physician offices are not facilities regulated by CMS Conditions of Participation, this rule does not apply to physician offices or healthcare workers who work in physician offices, unless they are also on staff at a covered facility.
A number of states, including Alabama, filed lawsuits seeking injunctions to the enforcement of the healthcare worker vaccine mandate. Those lawsuits were consolidated into two federal court actions, and in both, the federal district courts issued stays to enforcement. The federal government petitioned the corresponding federal circuit courts for relief from the stays, and relief was denied in both courts. Following the circuit court denials, the government petitioned the US Supreme Court for the same relief, and the Court agreed to hear the specific issue of whether to lift the preliminary injunction.
The Court issued a per curiam opinion on January 13, 2022, granting the government’s petition and lifting the US District Court’s stay on enforcement of the vaccine mandate. The Court noted in a 5-4 decision that the Department of Health and Human Services (HHS) is the administering agency for Medicare and Medicaid programs, and thus the HHS Secretary is charged by federal law to develop regulations to aid in efficient administration of those programs and to protect the health and safety of individuals served by them. The Court also agreed that that the HHS Secretary was within his authority in issuing the vaccine mandate in an interim final rule, rather than through a usual notice and comment period, because of the highly infectious nature of COVID-19, and the particular vulnerability of populations served by Medicare and Medicaid.
Although the Court lifted the preliminary injunction on enforcement of the healthcare worker vaccine mandate, it only ruled on that specific issue, so the state lawsuits to stop enforcement are back in the federal circuit courts, pending the federal government’s appeal, and a possible writ of certiorari. However, the rule will remain in effect and enforceable pending the appeal and possible writ. The Court’s opinion did not address or affect the available religious and medical exemptions to the rule, and it did not expand the scope of the rule beyond healthcare facilities with conditions of participation for Medicare and Medicaid Services, so it still does not apply to physician clinics or offices.
The other vaccine mandate, not specific to healthcare, came through the Occupational Safety and Healthcare Administration (“OSHA”), under the auspices of the Department of Labor. OSHA enacted a temporary emergency standard covering employers with at least 100 employees. The standard requires worker vaccinations, with no exceptions, other than daily masking and weekly testing at the employee’s expense.
This new standard was challenged by states and business organizations in several federal courts, and one federal circuit court entered a stay on enforcement. When all of the cases were consolidated under another federal circuit court, that court lifted the stay so the rule could go into effect. The Supreme Court accepted an emergency petition from the states and business leaders on whether to impose a preliminary injunction on enforcement of the rule, pending the resolution of lawsuits consolidated with the Sixth Circuit Court of Appeals.
On the same day the Court lifted the stay on the healthcare worker vaccine mandate, the Court granted a stay of enforcement of the OSHA worker vaccine mandate. In another per curiam opinion, this time a 6-3 decision, the Court reasoned that federal law authorizes OSHA to regulate workplace safety, but that Congress has not given OSHA specific authority to regulate “broad public health measures.” Finding that while there is COVID-19 infection risk in the workplace, those risks are not relegated just to the workplace, and therefore, OSHA exceeded Congressional authority in enacting its temporary emergency standard requiring worker vaccinations.
As with the healthcare worker vaccine mandate, the Court’s ruling does not end the rule or the challenge to the rule. The Court has stayed enforcement of this OSHA standard until the disposition of the legal challenges in the Sixth Circuit Court of Appeals and any potential writ of certiorari.
- Biden v. Missouri, Nos 21A240 and 21A241 (2022); https://www.supremecourt.gov/opinions/21pdf/21a240_d18e.pdf
National Federation of Independent Business v. Department of Labor, Nos 21A244 and 21A247 (2022);