Supreme Court Hears Major Vaccine Mandate Cases Affecting Nation's Employers

January 7, 2022

Author: David B. Weisenfeld

COVID-19 vaccine requirements took center stage today as the Supreme Court heard extended arguments in a pair of closely watched cases affecting employers. The first case involved the Biden administration's Emergency Testing Standard (ETS) requiring employers with 100 or more employees to ensure that their employees be fully vaccinated or undergo weekly testing if they are not.

With the first requirements set to take effect on Monday, and unvaccinated workers due to face regular testing beginning February 9, 2022, the stakes could not be higher. The ETS will cover an estimated 84 million workers if upheld by the Supreme Court. But following the arguments, such an outcome appeared uncertain.

Will the Emergency Temporary Standard Take Effect?

In late December, the 6th Circuit Court of Appeals ruled that the Occupational Safety and Health Administration (OSHA) has wide discretion to implement the best possible solution to ensure the health and safety of all workers. But several states and business groups appealed that ruling almost immediately, seeking a stay of the ETS.

Representing those groups before the Supreme Court, Scott Keller questioned whether OSHA had the authority to issue the ETS. "OSHA's one-size-fits-all approach is not an appropriate use of its emergency powers," said Keller. "It treats all workplaces the same." He also wondered if OSHA was truly the agency that has expertise over communicable diseases.

Justices Elena Kagan, Stephen Breyer and Sonia Sotomayor expressed clear skepticism with his position. "Why shouldn't OSHA have a national rule to protect workers?" Justice Sotomayor pointedly asked. "Having deaths at an extraordinary rate and catching COVID-19 keeps people out of work for a long period of time." She also noted that the ETS is not a vaccine mandate since unvaccinated workers may opt for regular testing and wear a mask.

In response to claims that the ETS represents an unprecedented action by a federal agency, Justice Kagan wondered, "Why isn't this [the ETS] necessary to abate a great risk? Nearly 1-million people have died," said Kagan. "The agency has done everything but stand on its head to show this is necessary."

Arguing for the Biden administration, Solicitor General Elizabeth Prelogar called COVID-19 the deadliest pandemic in the nation and noted that OSHA had studied the science and found that unvaccinated workers are at a heightened risk and pose a grave danger to others.

But in a potentially ominous sign for the Biden administration, Chief Justice John Roberts wondered why the states couldn't respond to the problem, and asked why Congress didn't have a say.

When the Solicitor General argued that Congress has already delegated to OSHA the right to protect workers with the OSH Act, the Chief Justice countered, "That was 50 years ago. I don't think they had COVID in mind." He added that was almost closer in time to the Spanish flu pandemic and suggested the government's action was unprecedented.

Meanwhile, Justice Samuel Alito noted that the ETS was issued two months ago and questioned what the harm would be in the Supreme Court taking a few days to digest the situation and issue a short administrative stay before the ETS takes effect.

The Solicitor General countered, though, that she did not believe an administrative stay is warranted, noting that the only big requirement slated to kick in on January 10 involves masking for unvaccinated workers.

"Even an administrative stay by the Court for a few days may have significant consequences," Ian Carleton Schaefer, chair of Loeb & Loeb's employment and labor practice in New York City, told XpertHR. "I would expect some sort of ruling by no later than the February 9 testing deadline, if not sooner."

The administration estimates that its vaccine-or-testing requirement would cause 22 million people to get vaccinated and prevent countless hospitalizations.

Vaccine Mandate for Health Care Workers Goes Under Microscope

The Supreme Court also heard arguments today in a case involving the administration's vaccine mandate for health care workers at hospitals receiving federal money. The government's rule, by the US Department of Health and Human Services, regulates more than 10.3 million health care workers at hospitals, nursing homes and other facilities in the US.

The justices appeared a bit more receptive to this requirement, as some observed that it was the states - not health care workers themselves - who were challenging the mandate. For instance, Justice Brett Kavanaugh observed, "The people who are regulated are not here complaining."

But Missouri Deputy Attorney General Jesus Osete told the justices that such a mandate would lead some health care workers to leave their jobs, which could decimate local economies in rural areas. And, Louisiana Solicitor General noted of the health care worker mandate, "This rule has no exceptions, and workers don't have a choice," she said. "Get vaccinated or get fired."

But Deputy Solicitor General Brian Fletcher told the Court, "Most workers will choose to get vaccinated rather than lose their jobs." And Justice Kagan noted that some employees might come back to work because they would no longer have to work side-by-side with unvaccinated colleagues.

Fletcher asserted during his argument that health care workers have long been subject to employer or state vaccination requirements for infectious diseases such as hepatitis B, measles and the flu.

It is not clear when the Supreme Court will rule, but decisions in both cases are likely to be quicker than is normally the case for the nation's highest court.