On Jan. 7, 2022, the Supreme Court of the United States (SCOTUS) will hold a special session to hear oral arguments in a group of cases challenging the Biden administration’s COVID-19 vaccine mandate for employers with 100 or more employees and for healthcare workers who work in a facility that receives funding from the Centers for Medicare and Medicaid Services (CMS).1
The worker COVID vaccine mandate requires businesses with 100 or more employees to demonstrate that all workers be fully vaccinated by Jan. 4 or face termination and it forces employees who are exempt from vaccination to wear face masks and get tested for the coronavirus weekly. The mandate will be enforced by the U.S. Occupational Safety and Health Administration (OSHA).2 The health care worker mandate enforced by CMS also requires that all employees working at hospitals receiving Medicare or Medicaid be fully vaccinated or face termination.3
Court Will Decide Whether 80 Million Workers Will Face COVID Vaccine Mandates
The Supreme Court decided to take the cases on an emergency basis when appeals were made by both sides in the matter after a series of court decisions left the country in limbo as to whether the federal COVID vaccine mandates are enforceable. The most recent decision by the U.S. Sixth Circuit Court of Appeals lifted the temporary stay on the workplace mandate, which was granted in November 2021 and affected 80 million workers.
The Justice Department and challengers to the COVID vaccine mandates reached out to Justices Brett Kavanaugh and Samuel Alito seeking their assistance in reversing Appellate Court orders that both stayed and reinstated the workplace mandates.4 While this legal back and forth has resulted in the mandates staying in place, the Biden administration has no plans to enforce the workers vaccine requirements until January 10 and, as long as the employer “is exercising reasonable, good faith efforts to come into compliance with the standard,” OSHA will not enforce the weekly testing requirements prior to Feb. 10, 2022.5 6
The challengers to the workplace mandate include 27 states with Republican governors, religious groups, businesses and business groups such as the National Retail Federation, The American Trucking Associations and the National Federation of Independent Businesses.7 8
The Biden administration strongly defended the vaccine mandate with Marty Walsh, U.S. Labor Secretary, citing the “grave danger of COVID-19″:
COVID-19 has had a devastating impact on workers, and we continue to see dangerous levels of cases. We must take action to implement this emergency temporary standard to contain the virus and protect people in the workplace against the grave danger of COVID-19.9
Businesses Anticipate Losing Large Number of Employees if SCOTUS Rules in Favor of COVID Vaccine Mandate
One of the challengers, the National Association of Convenience Stores, maintains that, while they are encouraging vaccination, they anticipate losing large numbers of employees should they be forced to mandate the vaccine as a condition of employment. Lyle Beckwith, senior vice president of government relations warned…
Our industry is facing a labor shortage and supply chain disruptions. The OSHA rule will make all of this worse, and everyday Americans will take the brunt of the problems it creates.10
Jordon Sekulow, one of the attorneys for the Heritage Foundation, a challenger to the vaccine mandate, argues:
This mandate not only impinges on the constitutional rights of employees but creates onerous burdens on employers, including enforcing the mandate, storing private medical information of all employees’ vaccine status, and conducting onsite weekly COVID testing. Quite simply, it is an unconstitutional federal power grab.11
Heritage Foundation president, Kevin Roberts, explained, “We stand to lose a lot. If the federal government is able to pierce that sacrosanct relationship between employer and employee.”12
Does OSHA Have the Legal Authority to Enforce the Federal COVID Vaccine Mandate?
At issue with the workplace mandates is whether OSHA has the legal authority to enforce the sweeping federal vaccine mandate through its emergency temporary standards. Of the nine emergency temporary standards OSHA has issued in the past, six were challenged in court and all but one was struck down. Legal analyst Dan Eaton points out, “Just when you’re looking at the odds, the fact is that the majority of emergency temporary standards have been struck down by the courts.”13
Opponents stress that such sweeping mandates should be enacted by Congress rather than OSHA, pointing out that the risks from exposure to COVID-19 are not limited to the workplace and that COVID is a universal threat in society with the potential for transmission anywhere from one’s home to a store to the workplace.14 The U.S. Court of Appeals for the Fifth Circuit agreed with the challengers calling the vaccine mandate, “staggeringly overbroad” and stating that it “grossly exceeds OSHA’s statutory authority”.15
However, because the case before the Fifth Circuit court was only one of more than two dozen challenges to the mandate in federal court, the cases were consolidated, and a lottery was used to determine which court would ultimately decide the issue.16 17
The Sixth Circuit Court of Appeals, which was chosen to hear the consolidated cases, reinstated the workplace vaccine mandate in a 2-1 decision, putting an end to the temporary stay issued by the Fifth Circuit Court.18 The majority opinion found:
Given OSHA’s clear and exercised authority to regulate viruses, OSHA necessarily has the authority to regulate infectious diseases that are not unique to the workplace.19
The Fate of 10.3 million Health Care Workers Will Also Be Decided by SCOTUS
The Supreme Court of the United States will also hear arguments as to whether CMS can mandate COVID vaccine for all health care workers in a health care facility that receives funding from CMS. The U.S. District Court in Missouri struck down the vaccine mandate in 10 states, concluding that CMS lacked the constitutional authority to mandate a vaccine for 10.3 million health care workers, 2.4 million of which are unvaccinated.20 The COVID vaccine mandate for healthcare workers remains in effect in approximately half of the states.21 The Biden administration will not enforce the mandate until the legal challenges are concluded.22
The health care workers mandate is the first time that the federal government has attempted to mandate a vaccine for a significant portion of the U.S. population. Public health laws mandating vaccine use have historically been reserved for the states and, in 1905, the Supreme Court affirmed in Jacobson v Massachusetts that state legislatures had the constitutional authority to mandate (or not mandate) smallpox vaccine.23
Vaccines laws in the U.S. are primarily state laws and vary from state to state.24 In 2021, no state passed a law mandating universal COVID-19 vaccine use and a number of states, like Florida and Texas, passed legislation prohibiting COVID vaccine mandates.25
One of CMS’s stated justifications for the federal vaccine mandate is to enforce a uniform rule across the country, while opponents fear forcing use of the controversial COVID vaccine will result in a large exodus of health care workers at a time when they are needed the most. The current state of the COVID vaccine mandate is disjointed and allows health care workers in half the country to continue to work without being forced to get vaccinated, while the other half faces termination if they do not comply.
Even though a federal law should not be constitutional in half the country but not the other half, CMS plans to enforce the mandate in the states that it can. Workers who have not had their first dose of COVID vaccine by Jan. 27 will be terminated.26
In support of the federal COVID vaccine mandate for all health care workers working for facilities providing care to Medicare and Medicaid patients, the U.S. Solicitor General, Elizabeth Prelogar, said,
The Secretary of Health and Human Services exercised his express statutory authority to protect the health and safety of Medicare and Medicaid patients by requiring healthcare facilities that choose to participate in those programs to ensure that their staff are vaccinated.27
SCOTUS Ruling Will Decide if Vaccine Mandates Are Under State or Federal Control
Attorney Sean Marotta of Hogan Lovells said there is “a subset of judges who believe that administrative agencies have too much power” and he suggests looking towards Justices Kavanaugh, Amy Coney Barrett and Chief Justice Roberts for the deciding votes.28
Attorney Aaron Siri managing partner at Siri & Glimstad LLP, who is challenging a number of COVID vaccine mandates in court, said, “The grounds on which the emergency rule is likely to be struck down is that CMS doesn’t have the statutory authority to adopt this regulation.”29
Among the issues is whether CMS required congressional authority to enact this sweeping federal vaccine mandate, their failure to provide for a public comment period, and whether CMS has the power to set conditions for medical facilities that receive federal funding. According to Case Western Reserve University law professor, Sharona Hoffman, CMS has the authority to enact these measures as “this is a matter of life and death.”30
Other attorneys feel the lack of a public comment period to solicit public input on the federal COVID vaccine mandate may be the deal breaker. Their argument is that, if this was such a clear emergency necessitating immediate action without waiting for public comment, the administration wouldn’t have waited so long to implement the rule creating the mandate.31
For now, all eyes are on the Supreme Court after it has made the highly unusual decision to hear the federal COVID vaccine mandate cases on an emergency basis.
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1 Supreme court to hold special session on Biden’s vaccine mandates for workers. The Guardian Dec. 23, 2021.
2 Lindenber G. Vaccine Mandate Heads to the Supreme Court. CSP Daily News Dec. 23, 2021.
3 Staahl D. In-Depth: President Biden’s most sweeping vaccine mandates head to Supreme Court. 10News.com Dec. 23, 2021.
4 Sneed T, de Vogue A. Supreme Court schedules January 7 oral arguments in challenges to Biden vaccine mandates. CNN Dec. 22, 2021.
6 Lindenber G. Vaccine Mandate Heads to the Supreme Court. CSP Daily News Dec. 23, 2021.
7 Supreme court to hold special session on Biden’s vaccine mandates for workers. The Guardian Dec. 23, 2021.
8 Kimball, S. Federal appeals court reinstates Biden administration’s business vaccine and testing mandate. CNBC. Dec. 17, 2021.
9 Bluey R. Supreme Court Sets Special Hearing on Biden’s COVID Vaccine Mandates. The Daily Signal Dec. 24, 2021.
10 Lindenber G. Vaccine Mandate Heads to the Supreme Court. CSP Daily News Dec. 23, 2021.
13 Staahl D. In-Depth: President Biden’s most sweeping vaccine mandates head to Supreme Court. 10News.com Dec. 23, 2021.
15 Fritze J. Federal appeals court keeps on hold Bidens COVID19 vaccine or testing rule for large companies. USA Today Nov. 12, 2021.
16Williams, P. Biden administration urges appeals court not to block new vaccine rules for companies. NBC News Nov. 8, 2021.
17 Bluey R. Supreme Court Sets Special Hearing on Biden’s COVID Vaccine Mandates. The Daily Signal Dec. 24, 2021.
18 Mulvihill G, DeMillo A. Court Allows Biden Employer Vaccine Mandate To Take Effect. HuffPost Dec. 28, 2021.
20 State of Louisiana et al. vs. Xavier Becerra et al. 3:21-CV-03970. Document 28. Nov. 30, 2021.
21 Supreme court to hold special session on Biden’s vaccine mandates for workers. The Guardian Dec. 23, 2021.
22 Lindenber G. Vaccine Mandate Heads to the Supreme Court. CSP Daily News Dec. 23, 2021.
23 Supreme Court of the United States. Jacobson v Massachusetts, 197 U.S. 11 (1905).
24 National Vaccine Information Center. State Law and Vaccine Requirements. 2021.
25 NVIC. All Proposed COVID-19 Vaccine Mandates Rejected by State Legislatures. NVIC 2021 Annual Report on State Vaccine Legislation Sept. 20, 2021.
26 High Court Vaccine Mandate Case Puts Agency Power to the Test (1). Bloomberg Law Dec 29, 2021.
27 Sneed T, de Vogue A. Supreme Court schedules January 7 oral arguments in challenges to Biden vaccine mandates. CNN Dec. 22, 2021.
28 High Court Vaccine Mandate Case Puts Agency Power to the Test (1). Bloomberg Law Dec 29, 2021.