The future of the Biden administration’s COVID vaccine and testing mandates appears to be in jeopardy following arguments before the Supreme Court on Friday, potentially doing away with nationwide workplace rules around COVID, and creating major uncertainty for companies across the country.
As new cases of COVID surged nationwide this week, justices heard oral arguments on Friday to determine whether or not to halt federal vaccine and testing mandates for health care workers put in place by the Centers for Medicare and Medicaid Services (CMS) and a mandate for private employers with at least 100 workers put in place by the Occupational Safety and Health Administration (OSHA).
Business lobbies, religious groups, and states with Republican leaders have led legal challenges against the mandates, arguing the agencies implementing them are overreaching their authority. On Friday, Scott Keller, a former solicitor general of Texas, argued in front of the court that the OSHA mandate will likely harm the U.S. workforce should employees quit over these vaccine mandates.
Meanwhile the Biden administration has contended that these mandates are necessary to protect workers and health care providers amid a global pandemic. “The court should reject the argument that the agency is powerless to address the grave dangers,” U.S. Solicitor General Elizabeth Prelogar said while arguing for the merits of the OSHA mandate.
Based on the nearly four hours of questions and comments from the justices, experts say that they believe the court is leaning toward issuing a stay on the OSHA mandate, but may let the CMS mandate for health care workers go forward. However, any clear outcome is far from certain.
What clues do the oral arguments provide on how the court will rule on vaccine mandates?
Justices Elena Kagan, Stephen Breyer, and Sonia Sotomayor seemed to be in support of mandates, particularly in regard to a mandate for health care workers.
“There are 750,000 people who got this yesterday. Hospitals are full to overflowing. There is a problem. It seems to me that every minute these things are not in effect, thousands more people are getting this disease,” Breyer said Friday.
But questions from justices who likely have the swing votes in these cases—Chief Justice John Roberts, and justices Brett Kavanaugh and Amy Coney Barrett—seemed to indicate they believed at least the OSHA mandates may prove overly broad, and that the agency’s power in issuing the mandate needs specific authorization from Congress or the states.
“I understand your idea that agencies are more expert than Congress. I understand the idea that they can move more quickly than Congress, but this is something that the federal government has never done before,” Roberts said to Prelogar on Friday, adding that he believed it seemed the OSHA mandate was more of a broad attempt to vaccinate all Americans.
It may very well turn out that the justices endorse one mandate, while doing away with the other.
“I think we may see a different outcome and a different lineup in two cases in terms of which way this goes,” says Devjani H. Mishra, a lawyer with Littler, the nation’s largest employment and labor law firm. “In the CMS argument, you definitely saw that regulating health care is different; there’s more precedent to require vaccines for health care employees, as opposed to employees generally. It does seem like they are more inclined to give deference on the health care side.”
In the case of the OSHA mandate, the broad nature of the order may be more problematic for the majority of justices. It may have been more palatable if it had been applied to narrower industries, such as meatpacking or other environments where people work closely together, Mishra said.
“I am expecting the OSHA mandate to be enjoined as too broad and not clearly authorized,” says Sean Marotta, a lawyer with Hogan Lovells specializing in appellate and Supreme Court cases.
Labor and employment litigation expert Jim Paul of Ogletree Deakins tells Fortune he came to the same conclusion: “Although my crystal ball has been broken during the entire pandemic, it seems that a majority of the justices are leaning towards staying the enforcement of the OSHA ETS [emergency temporary standard],” Paul says, adding that all of the justices asked questions and commented during the OSHA portion of the oral arguments on Friday.
But others say that it’s less clear-cut.
“It’s kind of hard to predict. It’s really hard to see where they’re going to land on this,” says Robert Duston, a partner at Saul Ewing Arnstein & Lehr, a labor and employment law practice.
When will the court issue a ruling?
There was a clear divide in the justices’ thinking as to who has the authority to issue these emergency rules, says Ian Carleton Schaefer, chair of Loeb & Loeb’s New York employment and labor practice. And several justices floated the idea of issuing a brief administrative stay, or pause, that would allow the court to review the merits before issuing a final determination.
If a stay does occur, expect it to be fairly brief, only lasting a few days, says Jenin Younes, litigation counsel for the New Civil Liberties Alliance. She tells Fortune that the court could issue a decision as early as the end of next week or early the following week. Schaefer says he expects some sort of ruling by no later than the Feb. 9 testing deadline, if not sooner.
“They tend to work very quickly and technically. This was still brought up on the emergency docket,” Duston says.
What does this mean for businesses and health care providers?
With a Monday deadline looming for the OSHA mandate, experts say there’s not a lot of time for businesses to react—and because of that, the court may issue a stay.
But for some companies, whether or not the Supreme Court grants a stay may not really matter.
Many large employers have moved ahead with vaccine mandates and masking protocols even amid the legal uncertainty simply because of the tight time frame, Mishra says. Duston adds that his firm has been advising clients to have policies ready as well.
“The reality of the situation is if the OSHA ETS falls away, we’re back to a situation in which it will vary very much state by state what businesses need to comply with,” Mishra says. In New York City, for example, employers now have to contend with vaccine mandates whereas Florida has gone in the other direction, she says. “If you’re a national employer, you may find yourself in a situation where you have to have different rules in different states.”
Businesses are going to have to think hard about what measures they’ll be using to keep their workers safe with or without these mandates as long as COVID continues to be an issue, and that includes continuing increased sick time policies, assessing benefits, and determining the use of remote work.
“Whether or not the OSHA ETS is upheld doesn’t dictate the reality of when the pandemic will end,” Mishra says.
If both mandates are upheld, Duston says, businesses that have been acting in good faith, but are not 100% compliant, will likely get a pass from OSHA.
“I really don’t think OSHA is going to be that aggressive for at least the first months,” he says, adding that the agency is understaffed and short on enforcement capabilities.
How the Supreme Court got involved
OSHA released an emergency temporary standard in November that calls for employers with 100 or more employees to either implement a vaccine mandate or ensure workers are undergoing weekly COVID-19 testing and wearing face masks at work. The rule covers temporary workers, seasonal workers, and minors.
If the OSHA rule is allowed to go into effect starting Monday, Jan. 10, employers must show they are taking “good faith” measures and mandate masks among unvaccinated workers. OSHA estimated that 40% of employers would adopt the masking policy. Routine testing would go into effect on Feb. 9.
The CMS rule generally requires that health care workers at CMS-covered facilities be vaccinated. Starting Jan. 27, facilities need to be working toward having at least 80% of their workforce fully vaccinated. CMS-covered health care providers would need to be 100% compliant with the rule by March 28 to avoid any enforcement action.
More than two dozen state governors and attorneys general—including from Alabama, Arizona, Arkansas, Florida, Missouri, Nebraska, South Carolina, and South Dakota—formed coalitions to file lawsuits against the mandates. Several business groups also sued to block the OSHA mandate.
Previously the Fifth and Sixth Circuit courts halted the OSHA vaccine mandate from going into effect. Missouri and Louisiana district courts issued injunctions staying the CMS rule soon after.
The CMS announced last month that it would enforce its vaccine mandate in the 25 states where appellate courts have not stayed the rule—California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington, and Wisconsin.
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