Additional Thoughts on the Supreme Court's Covid-19 Mandate Decisions

Assorted observations on yesterday's opinions, what they mean, and what comes next.

The Supreme Court's decisions to stay the Occupational Safety and Health Administration vax-or-test emergency temporary standard yet allow the Center for Medicare and Medicaid Services vaccine mandate for covered health care workers to go into force were not particularly surprising. Even though the CMS rule is more stringent in certain respects (in that it does not allow a test-and-mask exception from its vaccination requirement), it was clear from the beginning the OSHA rule represented a more aggressive assertion of agency authority and was thus more legally vulnerable.  The Court's 5-4 split on the CMS rule was surprising (at least to me), and gives me reason to wonder whether the vaccine mandate for federal contractors will survive eventual Supreme Court review. Here are a few more observations.

Both decisions relied, in part, on the respective agencies historical practice and understanding of their respective statutory authorities. In the CMS decision, the Court noted the Department of Health and Human Services' "longstanding practice" of imposing conditions on facilities participating Medicare and Medicaid, including conditions that ensure services are provided in a safe and healthy manner. In the OSHA decision, on the other hand, the Court noted that the OSHA ETS was "strikingly unlike the workplace regulations that OSHA has typically imposed." Even when addressing the risk of disease contagion under its broader authority to set permanent workplace standards, OSHA had never sought to enlist employers in pressuring employees to get vaccinated. Under the bloodborne pathogen rule, for instance, OSHA had required employers to make vaccinations available, but did not make them mandatory or otherwise impose additional costs on employees who refused to get vaccinated.

The Court's per curiam opinion in NFIB v. OSHA echoed many of the concerns raised by Chief Justice Roberts at oral argument, particularly the concern that the policy was a White House-driven effort to increase vaccination among the American public, more than an agency-driven effort to enhance workplace safety. While never claiming the Administration's justification for the OSHA ETS were pretextual, the opinion cited Administration statements indicating the rule was more a "public health" measure than a "occupational safety" measure. As the opinion notes, the President himself noted the OSHA rule was part of "a new plan to require more Americans to be vaccinated."

The NFIB v. OSHA opinion referred to the OSHA rule as a "vaccine mandate," even though the rule allowed employers to permit employees to test and mask as an alternative (which is why I try to refer to it as a "vax-or-test" requirement). Interestingly enough, the Court's characterization tracks that offered by OSHA itself, which said its rule required employers to adopt "a mandatory COVID–19
vaccination policy," with an "exception" for those employers who adopt a policy allowing employees to test weekly and wear masks at work. That is, both the OSHA and CMS policies were described by the implementing agencies as imposing vaccination requirements, subject to exceptions, even though the OSHA rule, in practice, gave employers (as opposed to a select group of employees) a ready (if potentially costly) alternative. Did this matter? It is hard to say, but it certainly affected the public framing and debate over the policy.

Justice Gorsuch wrote a separate concurrence in NFIB v. OSHA adopting a more aggressive posture than the Court's per curiam. This separate opinion was only joined by Justices Thomas and Alito, and not by any of the other conservatives. What accounts for the split? One possibility is that the Gorsuch opinion raised constitutional concerns about the breadth of delegation to OSHA that the Court's per curiam largely avoided. While the per curiam's discussion of the major questions doctrine could be understood as reflecting principles of agency law (as in principal-agent relationships and how to construe the scope of delegations from the principal to the agent), Justice Gorsuch framed the doctrine in terms of constitutional avoidance. Wrote Gorsuch: "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." I suspect the other conservative justices thought such broad pronouncements were unnecessary in this case and that any consideration of constitutional limits on delegation of power to federal agencies should await a case in which the issue is squarely presented.

The fact that six justices were unwilling to read the OSH Act as authorizing this standard, and relied upon major questions considerations to do so, is likely bad news for the Environmental Protection Agency in West Virginia v. EPA, which the Court will hear next month. That case concerns the scope of EPA authority to regulate greenhouse gas emissions from power plants, and tees up the major questions doctrine even more directly than did NFIB v. OSHA. If six justices do not think the OSH Act authorizes OSHA to push vaccination on large employers, I think it quite unlikely there will be five willing to uphold the D.C. Circuit's broad construction of EPA's authority under Section 111 of the Clean Air Act. [For more on the potential implications for WV v. EPA, see Dan Farber's comments on Legal Planet.]

As both cases involved stay requests, each case returns to the lower courts for further consideration. Given the language and reasoning of NFIB v. OSHA, the OSHA rule is effectively done, but that does not mean that OSHA can do nothing to address the spread of Covid-19 in the workplace. The Court's opinion goes out of its way to note that OSHA retains the authority to regulate workplace conditions that pose a particular danger of spread. The problem here is that OSHA did not do that with its ETS. Whether the rule applied was determined by the number of employee's on a firm's payroll, not the number of people in a shared workplace, in regular or prolonged contact, or anything else tied to the risk of spread in a given workplace. Thus OSHA was in the position of arguing that its rule was "necessary" to address the "grave danger" of Covid-19 among a 102-person salesforce working at distributed locations with relatively little close contact with one another, but was not "necessary" for a firm with 98 employees on a single shoproom floor.

It is also worth noting that OSHA's authority to adopt permanent standards after notice-and-comment is broader than its authority to adopt emergency temporary standards. So I would not be surprised were OSHA to release a new rule this spring focused on those working conditions in which Covid-19 is likely to pose the greatest risk, and such a rule might well survive judicial review.

One remaining question for the CMS rule will be whether it can apply to all covered facilities. As the Court noted in a footnote to Biden v. Missouri, the statutory language that most clearly supports the vaccine requirement does not apply to some types of facilities covered by the rule, such as end-stage renal disease clinics and home infusion therapy suppliers. This might be the seed for an as-applied challenge, but any such challenge is unlikely to have a major impact. Employees at such facilities represent less than three percent of those covered by the vaccine requirement, and (as the Court noted) the regulation has an express severability provision, so any problem here could not be used to take down the entire rule. For this reason, the Court concluded, there was "no reason to let the infusion-clinic tail wag the hospital dog."