The Supreme Court today handed down two per curiam decisions that will have significant impact on the nation’s fight against COVID-19. In per curiam decisions, there is no signed majority opinion, but in each case, there are signed dissents, by the usual suspects.

In National Federation of Independent Businesses v. Dept. of Labor, Occupational Safety and Health Administration, the Court was asked to resolve a split of authority between two Circuit Courts of Appeal. The Fifth Circuit stayed OSHA’s rule pending further judicial review. The Sixth Circuit, however, concluded that a stay of the rule was not justified. (There were some procedural complexities in the Sixth Circuit case that are not relevant here).

The OSH Act Authority

The Court concluded that the Occupational Safety and Health Act (OSH), which created and empowers OSHA, did not authorize the vaccine mandate because COVID-19 is a danger in general, not limited to the workplace. It held that “The [OSH] Act empowers the Secretary to set workplace safety standards, not broad public health measures. …necessary to protect ‘employees’ from grave danger in the workplace).” The Court continued “…the Act’s provisions typically speak to hazards that employees face at work. And no provision of the Act addresses public health more generally, which falls outside of OSHA’s sphere of expertise.” The Court concluded that “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.”

The Dissenting Justices

Justices Breyer, Sotomayor and Kagan strongly dissented. They pointed out that the mandate was narrowly tailored—it does not require vaccinations, allowing employers to substitute weekly testing instead, and that the mandate exempted employees working from home, remotely, or outdoors, and contains both disability and religious exemptions. In response to the majority’s claim that the mandate exceeded OSHA’s statutory authority, they said:

…OSHA’s rule perfectly fits the language of the applicable statutory provision. Once again, that provision commands—not just enables, but commands—OSHA to issue an emergency temporary standard whenever it determines “(A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.” 29 U. S. C. §655(c)(1). Each and every part of that provision demands that, in the circumstances here, OSHA act to prevent workplace harm.

The dissent also takes issue with the majority’s reliance on the fact that COVID-19 is found outside the workplace:

Contra the majority, it [the OSH act] is indifferent to whether a hazard in the workplace is also found elsewhere. … That provision authorizes regulation to protect employees from all hazards present in the workplace—or, at least, all hazards in part created by conditions there. It does not matter whether those hazards also exist beyond the workplace walls.

The dissent also points out that workplace conditions may lead to greater exposure to the virus than could be found elsewhere. Because people are often crowded together in the workplace, “COVID–19 spreads more widely in workplaces than in other venues because more people spend more time together there.” Also, employees often have little or no control over working conditions: “[D]uring the workday,” OSHA explained, “workers may have little ability to limit contact with coworkers, clients, members of the public, patients, and others, any one of whom could represent a source of exposure to the virus.”

What Happens Next?

Procedurally, this is not a final determination. It merely upholds a stay of enforcement. Lower courts will have to adjudicate on the merits. But the decision today is a clear message that the Court will ultimately hold against the mandate when it comes back.

At this time — employers need not comply with the OSHA mandate during the period of the stay, but may remain free to impose their own policies. Health care employers covered by the HHS mandate have to comply .

The HHS Decision

It is perhaps surprising in light of the OSHA decision that the Court upheld the rule requiring health care workers to be vaccinated. In Biden v. Missouri, et al., the majority opinion addressed a stay against enforcement of a mandate from the Dept. of Health and Human Services (HHS) requiring all facilities that care for Medicare and Medicaid patients to vaccinate their employees (the stay was issued by two different District Courts). The majority noted that the statutes gave HHS the authority to ensure that health care facilities protect their patients’ health and safety. Under this authority, there are “long lists of detailed conditions with which facilities must comply to be eligible to receive Medicare and Medicaid funds.” These include “a requirement that certain providers maintain and enforce an ‘infection prevention and control program designed . . . to help prevent the development and transmission of communicable diseases and infections.’” Accordingly, HHS promulgated a rule that covered staff must be vaccinated (religious and medical exemptions are available).

The majority concluded that the vaccination mandate “fit perfectly” into the statutory mandate that patients be kept safe. They took note of the fact that “Vaccination requirements are a common feature of the provision of healthcare in America: Healthcare workers around the country are ordinarily required to be vaccinated for diseases such as hepatitis B, influenza, and measles, mumps, and rubella.”

Just as in the OSHA case, there was a signed dissent here, this time from Justices Thomas, Alito, Kavanaugh and Barrett. They argued that statutes authorizing HHS to govern “administration” of Medicare and Medicaid don’t authorize them to address vaccinations: “The Government has not made a strong showing that this hodgepodge of provisions authorizes a nationwide vaccine mandate.” (Note that it appears that Chief Justice Roberts was the swing vote—the majority opinion is unsigned, but the dissent is signed by the four conservative justices. Clearly CJ Roberts voted against the OSHA mandate, since only the three liberal justices dissented, but in favor of the HHS mandate.)

As in the OSHA case, this is not the procedural end of the HHS mandate. It too can be adjudicated on the merits in the courts below. But the Supreme Court has signaled that it will uphold the HHS rule.

About the Author: Brian Farrington

Brian T. Farrington is a Shareholder and Section Head of the Cowles and Thompson Employment Law section.