By: Chad J. Sullivan and Lucero Tennis Kieffer
On January 13th, the Supreme Court issued opinions in the companion cases concerning governmental vaccine mandates. Regarding the OSHA vaccine/testing mandates for private employers with 100 employees or more, the Supreme Court, by a 6 to 3 decision, stayed the OSHA vaccine mandate. The Supreme Court held that the parties opposing the mandate were “likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate.” The Supreme Court held that Congress had not plainly authorized the Secretary’s mandate regarding broad public health measures and distinguished this from other OSHA workplace regulations because “a vaccination after all cannot be undone at the end of the workday.”
In the companion case regarding the Health and Human Services vaccine mandate for Medicare and Medicaid facilities (the “CMS Rule”), the Supreme Court reached the opposite conclusion and lifted a stay of injunctions prohibiting the enforcement of the rule. Regarding the CMS Rule, the Supreme Court held the Secretary was granted authority for the rule within the language of the Medicare statue. The Supreme Court held that the Secretary was within the statutory authority in requiring that in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the CMS Rule must ensure that their employees be vaccinated against COVID-19. The key deadlines under this rule are now January 27th and February 28th.
Both of these opinions are only as to the stay of enforcement of the rules, not a final and ultimate ruling on the merits. Litigation in both cases will continue in the Court of Appeals and the Supreme Court specifically noted that both decisions will terminate upon the denial of a writ of certiorari or if writ is granted, upon the final judgment of the Supreme Court. The opinions also leave States free to regulate employees regarding COVID-19 vaccines, which some States may have already adopted or approved the OSHA plan.