After a protracted battle in the Courts, on January 13, 2022, the U.S Supreme Court effectively ended the Biden Administration’s efforts to mandate widespread COVID vaccinations for large employers. That day, the Court issued a stay of an OSHA emergency temporary regulation that required all employers nationwide that had 100 or more employees, regardless of industry, to implement a mandatory vaccination policy for their employees and verify that the employees were vaccinated.

The practical effect is that there will be no federal mandatory vaccination requirements for employers except for employers in the healthcare industry who receive Medicare/Medicaid funds.

What does this mean for health care providers?

For those health care providers who receive Medicare/Medicaid funds, a 5-4 majority of the Supreme Court upheld (by refusing to issue a stay) a separate regulation that requires mandatory vaccinations for employees in that industry by February 28, 2022. Conservative Justices Roberts and Cavanaugh sided with the liberal Justices. They found that the rule was more focused since it was limited to the more traditionally regulated health care industry and thus was not the same expansive use of agency authority. Moreover, the limitation of the rule to providers that received federal funds was deemed relevant because the courts have been more relaxed in enforcing rules that basically are a condition of receipt of the government money.

Finally, there is some question whether some states (such as Florida) who generally enforce these regulations will enforce the rule. Politics, however, deem it unlikely that the Biden administration would give up enforcement if certain states don’t enforce the rule. In such cases, Florida health care providers should be cautious when making a decision to ignore the new rule.

The OSHA “Stay” Explained

A stay is a legal procedure that temporarily stops something like a law or rule from taking effect pending a final ruling from a court. In this instance, the standard for obtaining a stay was (in part) that the parties seeking the stay had to show that there was a substantial likelihood that they would ultimately prevail. By issuing the stay on the OSHA rule, the Supreme Court stated that OSHA’s rule is unlikely ever to be implemented and will likely be rejected in a final ruling should the government elect to continue to pursue the case.

Was this really a “Loss” for the Biden Administration?

In many respects, the Supreme Court’s decision was not unexpected. The Administration got its win as it applied to the healthcare industry that received federal funds. In so doing, it swayed two conservative justices, which could only be considered a win for the Administration. But there is also no doubt that the Court’s decision to issue a stay was a win for those who oppose an expansive government agency authority and a rebuke the Biden administration’s use of agency rules to circumvent an evenly-divided Congress.

The OSHA temporary emergency regulation applying to all employers with more than 100 employees severely pushed agency power limits when it was enacted. As the Supreme Court majority noted in issuing the stay, emergency temporary regulations had only been issued a few times in OSHA’s history. None were non-industry-specific rules applying to the general workforce. While the dissent noted that this was an unprecedented situation that called for unprecedented action, the Supreme Court majority’s recent trend toward limiting rather than expanding the authority of federal agencies to issue rules worked against the likelihood the rule would be upheld.

That said, pundits will likely find a silver lining for the Biden administration on the OSHA rule. It certainly knew that the rule as it applied to all employers with 100 or more employees had a good chance of being rejected by the Supreme Court. However, from a policy standpoint, it worked toward the Administration’s goal of encouraging vaccination. Indeed, enforcement of the rule was set to begin in February 2022. In order to technically comply with the rule, which required full vaccination of two doses, employers were going to have to start implementing mandatory vaccination policies by early January.

Because the Supreme Court did not issue its decision on the rule before the deadline for implementation to start, many employers implemented mandatory vaccine policies and started requiring verification of vaccination status. It remains to be seen how many of those employers will reverse course now, but there certainly will be many that will not.

Where to Now?

The Administration will certainly take heed of the Court’s approval of a more limited, industry-specific rulemaking authority. But implementing such rules takes considerable time and effort, even if they are issued as emergency temporary standards. Depending on how the next (and there will be a next) strain of COVID hits the public, the Biden Administration will have to decide whether it makes practical sense to invest the time and effort to implement such rules.

For the time being, except for a limited group of health care providers, employers are now back to making their own decision about mandatory vaccination policies. Florida employers implementing a policy will also need to comply with a state law that permits, but discourages, such policies by creating many ways a person can ask for an exemption from the policy.

Employers having questions regarding the Supreme Court’s COVID decisions or COVID issues in general, please feel free to contact me at scott.atwood@henlaw.com or direct dial 239-344-1287.