The Supreme Court recently handed down two decisions, going in opposite directions, about vaccine mandates. Based on some of the calls I’ve received, people are confused about what they mean for individual employees trying to navigate vaccine mandates at work.
The two cases involved the statutory authority of federal agencies to make employers require employees to get vaccinated. The decisions are entirely based on the language of two specific federal laws, and turn on the somewhat obscure field of administrative law. As Justice Gorsuch explained in a concurring opinion: “The question before us is not how to respond to the pandemic, but who holds the power to do so.”[1]
The Rulings
Healthcare Mandate Upheld (5-4)
The Centers for Medicare and Medicaid Services (CMS) passed a rule that required any medical provider that wanted Medicare or Medicaid money for their services—almost all of them—to fire unvaccinated workers. The Supreme Court upheld the rule, reasoning that Congress made protecting the “health and safety of individuals who are furnished services” a basic function of the CMS agency.[2] The Court further noted that the vaccine mandate was consistent with several longstanding CMS rules about patient safety.[3]
OSHA Rule for Large Employers Struck Down (6-3)
The Occupational Safety and Health Administration (OSHA) required large employers to mandate vaccines or weekly tests. The Supreme Court struck down the rule, saying that it went beyond what Congress authorized OSHA to do—protect work conditions, not public health generally.[4] The Court noted OSHA had never passed such a sweeping rule, across all industries and types of workplace, and did not have the power to do so now.
So to correct some common misconceptions I’ve been hearing:
- These decisions are based on interpreting the language of the statutes—not the Constitution.
- The Court did not make employer vaccine mandates illegal. The cases are about what the federal government can require private and state employers to do. They do not change what employers can choose to make a condition of employment.
- These decisions don’t say whether state vaccine requirements or bans on mandates are legal.
- The cases do not involve disability and religious exemptions, discussed in this EEOC guidance.[5]
Reading the Tea Leaves
Of course, when the Supreme Court speaks in one area, it is tempting, and sometimes reasonable, to predict where it will land in related areas.
Employers’ Voluntary Vaccine Rules Likely to Be Upheld
The Court does not seem to be embracing vaccine skepticism; even the conservative concurrences go out of their way to say they are not ruling on the effectiveness or risk of the vaccines.[6] Indeed, a majority of the Court discussed, with apparent approval, the CMS finding that spread of the virus is more likely when healthcare workers are unvaccinated.[7]
What did move the majority in the OSHA case was cost: “billions of dollars in unrecoverable compliance costs” to private businesses.[8] Earlier analyses have found this Supreme Court to lean strongly pro-business. This suggests the Court may be skeptical of attempts to constrain employers’ freedom either way. We can predict that both court and state legislature attempts to ban voluntary employer vaccine mandates may be unlikely to succeed.
OSHA Can Regulate Employment with High Risk of COVID
It seems quite clear OSHA can pass a narrower rule. Six justices in the majority of the OSHA case said it would be “plainly permissible” for OSHA to regulate more narrowly for hazards at work that go beyond “the everyday risk of contracting COVID-19 that all face.” For example, OSHA could address “risks associated with working in particularly crowded or cramped environments.”[9]
Disability Rights May Cut Both Ways
Nothing in these cases changes the widespread recognition that the ADA requires medical exemptions to any vaccine mandate; someone who cannot get the vaccine for medical reasons is entitled to a reasonable accommodation, if that is possible. Commentators like William Goren and I have also suggested the ADA could confer rights in the opposite situation—vulnerable employees may be able to ask for assurances that co-workers are vaccinated. The Supreme Court’s recognition of OSHA’s right to regulate particularly risky situations may lend support to this analysis. On the other hand, the concern for business freedoms suggests courts may be quick to find undue burden in such requests.
Low Bar to Provide Religious Accommodations?
Just before these rulings, in December, the Supreme Court (6-3) declined to stay a New York vaccination requirement for healthcare workers who could expose patients or other workers even though there was no religious exemption as the law was written.[10] The Supreme Court thus left in place a Second Circuit opinion that upheld the rule. The Second Circuit reasoned that employers may be able to move employees to other positions not covered by the rule, but do not have to do so if the move causes hardship to the business.[11]
Whether this reasoning will extend to religious exemptions beyond healthcare is, of course, not as clear, but earlier caselaw also suggests the duty to accommodate any burden imposed by religious objections is narrow.
On the other hand, this Supreme Court has been sensitive to rules that seem hostile to religion. For example, the Court ruled against New York pandemic restrictions that it held singled out houses of worship for treatment that was worse than similar secular businesses.[12] Concerns about anti-religion bias in employer vaccine mandates, such as the increased scrutiny some employers are turning on claims of good faith religious belief, may carry weight.
Fate of State Laws Unclear
According to the National Academy for State Healthcare Policy, states are all over the map—some mandate vaccines for state and healthcare workers, some ban such mandates, two even prohibit private employers from mandating vaccines. The fate of these state laws under potential federal challenges is not entirely clear.
The healthcare question may be answered: In light of the Medicare and Medicaid decision, it seems likely that state healthcare mandates will also be upheld, and the federal rule will preempt state laws that ban Medicare and Medicaid recipient organizations from complying with the mandate.
But, as discussed above, the Supreme Court may favor private businesses if they challenge state laws that bar companies from adopting vaccine rules. On the other hand, it may be sympathetic to states’ rights. Much depends on the context and specific laws at issue.
It Comes Down to At-Will Employment
In sum, the Supreme Court cases do little to change the bottom line from the worker’s perspective. Though some companies have dropped their vaccine requirements after the OSHA ruling, Bloomberg reports that many companies will continue their mandates voluntarily.
Whatever our beliefs about vaccines, the law recognizes largely the same rights as before these decisions. The Employment-at-will Doctrine limits the rights of employees unless they are in unions or civil service. Discrimination is illegal, and accommodations for disability and religion are required, but wholesale challenges to private employer mandates are unlikely to succeed.
[1] Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., Occupational Safety & Health Admin., 142 S. Ct. 661, 670 (2022) (Gorsuch, J., concurring) (hereinafter “NFIB v. OSHA”).
[2] Biden v. Missouri, 142 S. Ct. 647, 650 (2022) (per curiam).
[3] Id. at 652-53.
[4] NFIB v. OSHA, 142 S. Ct. at 666 (per curiam).
[5] Both mandates recognized those are likely required. 29 CFR § 1910.501(c); Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination, 86 FR 61555, 61572 (Nov. 5, 2021).
[6] See, e.g., NFIB v. OSHA, 142 S.Ct. at 670 (Gorsuch, J. concurring); Biden v. Missouri, 142 S.Ct. at 658 (Thomas, J., concurring) (“These cases are not about the efficacy or importance of COVID-19 vaccines.”)
[7] 142 S.Ct. at 651.
[8] 142 S.Ct at 666.
[9] 142 S. Ct. at 666.
[10] Dr.A v. Hochul, 142 S. Ct. 552 (2021).
[11] We The Patriots USA, Inc. v. Hochul, 17 F.4th 266, 275 (2d Cir.), opinion clarified, 17 F.4th 368 (2d Cir. 2021).
[12] Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020).
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