What to know after Supreme Court strikes down COVID vaccine-or-test mandate

A federal rule that would require millions of American workers to get a COVID-19 vaccine or submit to weekly testing stalled on Thursday, Jan. 13, when the country’s highest court temporarily blocked the government from enacting it.

In a 6-3 split decision with liberal justices dissenting, the U.S. Supreme Court determined the Occupational Safety and Health Administration overstepped its authority as a federal agency when it issued the workplace vaccine and testing mandate as an Emergency Temporary Standard, or ETS, in November.

“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,” the Supreme Court said. “Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”

The Court issued a stay on the emergency standard as a result, putting an indefinite hold on implementation and enforcement of the rule while its validity is challenged at the Sixth Circuit Court of Appeals.

A similar COVID-19 vaccine mandate impacting health care workers, however, was allowed to proceed after Justices voted 5-4 to allow a Centers for Medicare & Medicaid Services rule affecting employees at health care facilities that receive federal funding.

Future of the vaccine-or-test mandate

The Supreme Court’s order doesn’t “kill the ETS for good, but the long-term prognosis is not looking good,” national labor and employment law firm Fisher Phillips said shortly after the ruling was announced.

The mandate could reemerge in one of two ways, the law firm said.

Once the government and its challengers move through litigation at the Sixth Circuit, the appeals court could determine the ETS is valid — an outcome Fisher Phillips deemed “unlikely.” Even if the mandate passed muster at the circuit court, it “would face a steep hill to survive a challenge on the merits if the case is brought up before SCOTUS once again,” the law firm said.

The mandate’s second shot at surviving would come in the form of a permanent rule, Fisher Phillips said. Because emergency standards are designed to be in place for six months, they often serve as a proposal for a more permanent regulation.

According to the law firm, OSHA would have to start the rule-making process with a formal regulation published sometime on or before May 5 to keep the vaccine mandate in play. But Jordan Barab, former deputy assistant secretary at OSHA, previously told McClatchy News in an interview Nov. 4 that there likely wouldn’t be a permanent OSHA standard on COVID-19.

That’s because it typically takes decades for OSHA to issue a permanent standard — and by that point “COVID would hopefully be in the rear view,” he said.

Some legal experts have questioned whether Congress will step in to keep the vaccine-or-test mandate alive — either by broadening OSHA’s regulatory authority or imposing its own mandate.

But as University of Colorado professor Roger Pielke Jr. pointed out, that’s unlikely given that the U.S. Senate previously disapproved of the mandate. Senators voted 52-48 in December to overturn OSHA’s ETS, with two Democratic senators joining Republicans in the vote to dismantle the mandate.

“There is no chance of legislation passing that would expand OSHA regulatory authority,” Pielke, who specializes in science and policy, tweeted after the Supreme Court decision was released.

That leaves the future of a workplace vaccine mandate largely in the hands of states and individual workplaces, President Joe Biden said in a statement after the Supreme Court released its decision.

“The Court has ruled that my administration cannot use the authority granted to it by Congress to require this measure, but that does not stop me from using my voice as President to advocate for employers to do the right thing to protect Americans’ health and economy,” he said. “I call on business leaders to immediately join those who have already stepped up – including one third of Fortune 100 companies – and institute vaccination requirements to protect their workers, customers, and communities.”

Several states bar private companies from instituting such mandates or limit an employer’s ability to implement them.

Montana and Tennessee, for example, outright ban private employers from requiring their employees get vaccinated, according to the labor and employment law firm Littler Mendelson. Several other states make employers offer “expanded exemption options” for those employees who don’t want to get a COVID-19 vaccine.

Research conducted by the Society for Human Resource Management found about 51% of employers who fall under OSHA’s ETS were waiting to see what happened in the courts before making any decisions about a vaccination policy.

“Most respondents — 75 percent — said they are not likely to require vaccines or testing if the mandate is permanently struck down by the courts,” SHRM said.

What workers, companies should do in the meantime

Employers must now decide whether to require a COVID-19 vaccine or proof of a negative test result. Individual states could also issue their own mandates, meaning companies are “not ‘out of the woods’ just yet,” Littler said.

The Supreme Court decision does, however, give employers more time to prepare, according to the law firm.

Littler said companies “should consult with counsel to discuss the meaning of the Supreme Court’s ruling in their workplace, as well as what safety practices they should consider in view of the ongoing challenges posed by the COVID-19 pandemic.”

Should the emergency standard ever take effect, Fisher Phillips said, companies should know that OSHA “will take an aggressive approach to enforcement.”

“OSHA will most likely indicate that it expected employers to develop their compliance approach during this limbo period and be at the ready to launch their efforts immediately,” the law firm said.

That means companies should continue gathering information on employee vaccination status and develop a vaccine and testing policy that includes information on reporting positive COVID-19 tests, paid leave for employees getting a vaccine and face mask mandates for working indoors, Fisher Phillips said.

“While you have no immediate obligation to roll them out,” the law firm said, “you should have them at the ready just in case – or feel free to introduce them now.”

Fisher Phillips also recommended employers consider whether they want to institute their own mandate separate from OSHA’s emergency standard, impose additional safety standards, testing requirements or insurance surcharges for unvaccinated employees, or if they want to offer any sort of incentives for workers to get a COVID-19 vaccine.

How the Supreme Court justices voted

SCOTUS heard about three and a half hours of oral arguments on Jan. 7 before issuing its final decision Jan. 13 in a 30-page opinion that included a lengthy dissent penned by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan — the liberal minority on the bench.

Chief Justice John Roberts and Associate Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett comprised the majority.

In an unsigned opinion, they determined OSHA can set “workplace safety standards, not broad public health measures.” The Justices said COVID-19, though a risk in the workplace, is not an occupational hazard.

“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,” the Justices said.

Gorsuch said in a separate concurring opinion, joined by Thomas and Alito, that OSHA’s ETS didn’t stand up to the major questions doctrine, which says the courts will not defer to a federal agency’s authority on issues with vast economic and political impact unless Congress expressly grants them that authority.

“If administrative agencies seek to regulate the daily lives and liberties of millions of Americans, the doctrine says, they must at least be able to trace that power to a clear grant of authority from Congress,” Gorsuch said.

In their dissent, Breyer, Sotomayor and Kagan called COVID-19 a “menace in work settings” and said OSHA had acted within its realm of authority in issuing the ETS, pointing to the requirement that OSHA show a new hazard poses a grave danger to employees and an emergency standard is necessary to remedy it.

They also said a hazard can exist both within an employment setting and beyond it — such as the risk of fire, excessive noise and unsafe drinking water — but that doesn’t mean OSHA lacks the authority to regulate it.

“If OSHA’s Standard is far-reaching — applying to many millions of American workers — it no more than reflects the scope of the crisis,” the minority said. “The Standard responds to a work place health emergency unprecedented in the agency’s history: an infectious disease that has already killed hundreds of thousands and sickened millions; that is most easily transmitted in the shared indoor spaces that are the hallmark of American working life; and that spreads mostly without regard to differences in occupation or industry.”

How the COVID vaccine-or-test mandate got here

Biden announced his plan for a vaccine and testing mandate at companies with 100 or more employees on Sept. 9, and OSHA issued the rule as an ETS roughly two months later.

Some parts of the rule — which requires unvaccinated workers pay for COVID-19 tests and raised questions about how the historically underfunded and understaffed federal agency tasked with drafting the mandate could enforce it — were slated to take effect as early as December.

But challenges in the circuit courts delayed the start date.

Dozens of states, businesses and political groups argued OSHA had exceeded its authority and performed a task better suited to Congress by issuing the mandate.

On Nov. 5, the Fifth Circuit Court of Appeals blocked the emergency standard from taking effect — a decision the court affirmed in a 22-page decision a week later. The Fifth Circuit covers Louisiana, Mississippi and Texas, but the order went into effect nationwide.

After the Fifth Circuit decision, challenges in other circuit courts were still being considered. Those were consolidated and sent to the Sixth Circuit, which includes Ohio, Michigan, Tennessee and Kentucky. In a 57-page opinion issued Dec. 17, the Sixth Circuit opted to dissolve the previous stay in a 2-1 split.

Circuit Judge Jane B. Stranch, who penned the opinion, said OSHA has long had the “authority to regulate viruses,” including HIV or COVID-19, regardless of whether they are “unique to the workplace.” She also said the major questions doctrine didn’t apply because the emergency standard is “not an enormous expansion of (OSHA’s) regulatory authority.”

That decision momentarily put the emergency standard back in play, with OSHA extending some deadlines to give companies more time to comply.

Challenges to the Sixth Circuit decision followed, resulting in the Supreme Court taking up the case at the start of the new year.

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Hayley Fowler is a reporter at The Charlotte Observer covering breaking and real-time news across North and South Carolina. She has a journalism degree from the University of North Carolina at Chapel Hill and previously worked as a legal reporter in New York City before joining the Observer in 2019.
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