BREAKING: SCOTUS Stays OSHA Vax-or-Test Rule, Allows CMS Vaccine Mandate for Health Care Workers to Take Effect

By divided votes, the justices entered stayed t the OSHA Emergency Temporary Standard and stayed the lower court injunctions against the mandate that Medicare and Medicaid service providers require their employees to get vaccinated.

In opinions released this afternoon, the Supreme Court split over two of the Biden Administration's COVID-19 mandates.  By a vote of 6-3, in NFIB v. OSHA, the Court ruled against the Occupational Safety and Health Administration's Emergency Temporary Standard vax-or-test rule for large employers. Yet by a vote of 5-4, in Biden v. Missouri, the Court agreed to stay lower court injunctions against the Center for Medicare and Medicaid Services vaccine mandate for Medicare and Medicaid service providers. Both opinions for the Court were per curiam.

In NFIB v. OSHA, the Court split 6-3 along traditional ideological lines. Justice Gorsuch wrote a separate concurrence, joined by Justices Alito and Thomas. Justices Breyer, Sotomayor and Kagan issued a joint dissent. In Biden v. Missouri, Chief Justice Roberts and Justice Kavanaugh joined the liberal justices to form the majority. Justices Thomas and Alito each authored dissents that were also both joined by Justices Gorsuch and Barrett.

The opinion for the Court in the OSHA ETS case begins:

The Secretary of Labor, acting through the Occupational Safety and Health Administration, recently enacted a vaccine mandate for much of the Nation's work force. The mandate, which employers must enforce, applies to roughly 84 million workers, covering virtually all employers with at least 100 employees. It requires that  covered workers receive a COVID–19 vaccine, and it pre-empts contrary state laws. The only exception is for workers who obtain a medical test each week at their own expense and on their own time, and also wear a mask each workday. OSHA has never before imposed such a mandate. Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here.

Many States, businesses, and nonprofit organizations challenged OSHA's rule in Courts of Appeals across the country. The Fifth Circuit initially entered a stay. But when the cases were consolidated before the Sixth Circuit, that court lifted the stay and allowed OSHA's rule to take effect. Applicants now seek emergency relief from this Court, arguing that OSHA's mandate exceeds its statutory authority and is otherwise unlawful. Agreeing that applicants are likely to prevail, we grant their applications and stay the rule.

And from the heart of the opinion:

Applicants are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate. Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided. The Secretary has  ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense. This is no "everyday exercise of federal power." In re MCP No. 165, 20 F. 4th, at 272 (Sutton, C. J., dissenting). It is instead a significant encroachment into the lives—and health—of a vast number of employees. "We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance." Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 6) (internal quotation marks omitted). There can be little doubt that OSHA's mandate qualifies as an exercise of such authority.

The question, then, is whether the Act plainly authorizes the Secretary's mandate. It does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures. See 29 U. S. C. §655(b) (directing the Secretary to set "occupational safety and health standards" (emphasis added)); §655(c)(1) (authorizing the Secretary to impose emergency temporary standards necessary to protect "employees" from grave danger in the workplace). Confirming the point, the Act's provisions typically speak to hazards that employees face at work. See, e.g., §§651, 653, 657. And no provision of the Act addresses public health more generally, which falls outside of OSHA's sphere of expertise.

The opinion for the Court in the CMS case begins:

The Secretary of Health and Human Services administers the Medicare and Medicaid programs, which provide health insurance for millions of elderly, disabled, and low income Americans. In November 2021, the Secretary announced that, in order to receive Medicare and Medicaid funding, participating facilities must ensure that their staff—unless exempt for medical or religious reasons—are vaccinated against COVID–19. 86 Fed. Reg. 61555 (2021). Two District Courts enjoined enforcement of the rule, and the Government now asks us to stay those injunctions. Agreeing that it is entitled to such relief, we grant the applications.

From the heart of the opinion:

we agree with the Government that the Secretary's rule falls within the authorities that Congress has conferred upon him.

Congress has authorized the Secretary to impose conditions on the receipt of Medicaid and Medicare funds that "the Secretary finds necessary in the interest of the health
and safety of individuals who are furnished services." 42 U. S. C. §1395x(e)(9). COVID–19 is a highly contagious, dangerous, and—especially for Medicare and Medicaid patients—deadly disease. The Secretary of Health and Human Services determined that a COVID–19 vaccine mandate will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients. 86 Fed. Reg. 61557–61558. He accordingly concluded that a vaccine mandate is "necessary to promote and protect patient health and safety" in the face of the ongoing pandemic. Id., at 61613.

The rule thus fits neatly within the language of the statute. After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm. It would be the "very opposite of efficient and effective administration for a facility that is supposed to make people well to make them sick with COVID–19." Florida v. Department of Health and Human Servs., 19 F. 4th 1271, 1288 (CA11 2021).

As readers may recall, before oral argument I predicted that the Court would split on the two rules in this way, as the arguments in favor of the CMS rule are substantially stronger than those for the OSHA ETS.

There is more to say about these opinions, so check back to the blog for additional posts.