SCOTUS Hears Oral Arguments on Vaccine Mandate Challenges

January 10, 2022

SCOTUS Hears Oral Arguments on Vaccine Mandate Challenges, Compliance Dates Remain in Effect For Now

While President Biden’s COVID vaccine mandate officially took effect today, Monday, Jan. 10, 2022, the Supreme Court of the United States (SCOTUS) heard two rounds of arguments concerning two of the three hotly contested COVID-19 vaccination and/or testing mandates Friday.

OSHA’s ETS for Employers with 100 or More Employees

The first set of oral arguments focused on the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS), which would require employers with 100 or more employees to mandate employee vaccination or weekly testing and masking for their employees. The agency has stated its authority to act is grounded in a “grave danger” to workers posed by the COVID-19 pandemic. Solicitor General Elizabeth Prelogar represented the Biden administration, arguing that striking the mandate would leave OSHA “powerless” to address infectious diseases and potential future pandemics. According to OSHA’s estimates, the rule would require approximately 22 million people to get vaccinated.

On the other hand, Scott A. Keller, a lawyer for the National Federation of Independent Business representing a coalition of companies, argued to the Court that OSHA has superseded its authority by attempting to implement a testing and vaccine regime that would cover two-thirds of the private sector. Keller also emphasized the substantial costs that compliance would impose on businesses, particularly where employees may choose to undergo weekly testing in lieu of vaccination. Keller focused on the exacerbation of existing staffing shortages and potential “labor upheaval” threatening an already-strained labor market. A coalition of states represented by Ohio Solicitor General Benjamin A. Flowers argued that the mandate would intrude on states’ sovereign authority to “enact and enforce policies that conflict” with the proposed federal requirements.

SCOTUS’ conservative majority appeared skeptical of OSHA’s ETS. Chief Justice Anthony Roberts and Justice Neil Gorsuch indicated that states and Congress, rather than a federal agency, are best suited to address the challenges of the pandemic for businesses and workers. Justice Amy Coney Barrett questioned the mandate’s requirements as impermissibly overbroad. Justices Gorsuch and Brett Kavanaugh suggested that the underlying laws have not authorized OSHA’s authority in this area with enough clarity to permit enforcement of these mandates.

The liberal minority signaled their support of the OSHA mandate. Justice Elena Kagan began with questions emphasizing vaccine efficacy and focusing on a near million fatalities attributed to COVID-19. Justice Kagan asked why the mandates would not be considered “necessary to abate a grave risk,” also stating that OSHA’s policy is “most geared to stopping [the pandemic].” Justice Stephen G. Breyer also emphasized COVID-induced havoc, noting a tenfold increase in cases since the OSHA rule was initially put into effect. Additionally, Justice Sonya Sotomayor analogized masking policies to other protective rules such as those requiring welding safety equipment.

DHHS’s Healthcare Vaccine Mandate

The Court geared up for a second round of arguments shortly after noon. The second mandate at issue stems from a policy promulgated by the U.S. Department of Health and Human Services’ (DHHS) Centers for Medicare and Medicaid Services, which seeks to require vaccination for certain health care workers in facilities participating in Medicare and Medicaid programs. Principal Deputy Solicitor General Brian H. Fletcher asked the Court to reverse two lower court opinions blocking the DHHS mandate in 24 states. He argued the Secretary of Health and Human Services has exercised an express statutory authority to “protect the health and safety of Medicare and Medicaid patients,” which allows the mandate’s implementation. However, Justice Gorsuch indicated, through a series of questions to Mr. Fletcher, that the impact of the vaccine mandates may be viewed as an effort at controlling the employment of healthcare workers, which would not be permissible by any law.

Attorney Jesus A. Osete, Missouri’s Solicitor General, represented a coalition of states in opposing the mandate, arguing that the same healthcare workers who have been the “heroes” of the pandemic would be forced to choose “between losing their jobs or complying with an unlawful federal mandate.” He also stated that the government may not “force health care workers to submit to a permanent medical procedure,” and indicated that the country would face an “imminent crisis” following mass terminations or resignations by healthcare workers who refuse to comply with the mandate. However, in response to Solicitor General Osete’s argument, the Court’s three liberal justices seemed to indicate that the healthcare mandate is a permissible response to a public health crisis, such as the COVID-19 pandemic. Justice Sotomayor questioned why a vaccination mandate for healthcare workers would pose challenges for states. Justice Kagan stated “[w]e know the best way to prevent spread is for people to get vaccinated,” while Justice Breyer stated he would find it “unbelievable” that stopping vaccinations would be in the public’s interest.

Elizabeth Murrill, Louisiana’s Solicitor General, represented another set of states opposing the mandate on constitutional grounds. She attacked the mandate under the Spending Clause of the Constitution, which rests Congress’s authority to legislate on “whether the state voluntarily and knowingly accepts the terms.” She argued that here, there was no advance notice nor ability for states to accept such terms and that “Congress, not a government agency” should be charged with enacting such rules.

Based on the arguments last week, the Court’s conservative majority appears more so prepared to strike down OSHA’s ETS, while the fate of the DHHS vaccine mandate in the healthcare context is less clear. Although the Court has set a truncated briefing and oral argument schedule, it is yet unclear when a decision may be forthcoming.

At this point, the deadline to comply with OSHA’s ETS is today, January 10, 2022. While the compliance date(s) and the ultimate reach of OSHA’s ETS may change, depending on the Court’s decision, employers should review the requirements under OSHA’s ETS and continue to comply with the same. Alternatively, the DHHS vaccine mandate is currently stayed, pending the SCOTUS’ review. If you have questions about complying with the ETS or how the mandates may impact you or your business, contact KJK Labor & Employment attorneys Rob Gilmore (rsg@kjk.com or 216.736.7240) or Kirsten Mooney (kbm@kjk.com or 216.736.7239). We will continue to monitor developments and provide updates as they happen.