So It Goes

And so it goes. And so it goes. But where it’s goin’ no one knows. —Nick Lowe

We are now two full years into the COVID-19 pandemic, and, in many ways, the fissures that divide us as a nation are being encapsulated in our policy responses to the ongoing public health crisis, all much to the chagrin of the employers trying to navigate the morass. Eleven states, for example, either completely ban vaccination requirements for specified categories of individuals and/or dramatically expand the applicable exemptions that allow individuals to essentially opt themselves out of any such requirements (Alabama, Arkansas, Florida, Iowa, Kansas, Montana, North Dakota, Tennessee, Texas, Utah and West Virginia).

Twenty-two other states along with the District of Columbia and Puerto Rico have taken the opposite approach, imposing mandatory vaccination and/or regular testing requirements for state employees, healthcare workers, educational personnel and/or in establishments that serve the public (bars, restaurants, hotels, etc.) (California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Puerto Rico, Vermont, Virginia, Washington and Wisconsin).

In Virginia, one of the first acts of the newly elected (Republican) governor was to sign an order rescinding the mandate imposed by his (Democratic) predecessor the day he was sworn into office in January. My favorite of all of these, though, is Kentucky where the (Democratic) governor has imposed a vaccination requirement for state employees (with a testing alternative) while the (Republican) attorney-general added the commonwealth as a plaintiff in the lawsuit challenging the employer vaccination mandate promulgated by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA).

The United States Supreme Court weighed in in January, simultaneously issuing two opinions addressing government-imposed vaccination requirements. In the first—NFIB v. OSHA—the Court effectively struck down OSHA’s emergency rule, which would have required all private employers with more than 100 employees either to impose a vaccination requirement on all of their employees or to allow a testing alternative for unvaccinated employees. The second—Biden v. Missouri—upheld the Department of Health and Human Services’ (HHS) rule requiring all workers at healthcare facilities that receive Medicare or Medicaid reimbursements to be vaccinated.

Liberal pundits are proclaiming that the OSHA decision will fundamentally constrain the exercise of executive branch powers going forward; conservative pundits are arguing that the HHS decision effectively eviscerates all constraints on the exercise of such agency powers. At some level, though, the opinions approach the mandate question through the exact same lens: is the issuance of the vaccination mandate within the agency’s delegated authority from Congress?

In the OSHA case, the Court explained that “[t]he question . . . is whether the [OSH] Act plainly authorizes the Secretary’s mandate.” And the Court then concluded that “[i]t does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures.” As the Court went on to explain:

Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.

In the HHS case, the Court started with the same question and concluded that imposition of the vaccination mandate is within the agency’s authority and, for that reason, upheld the HHS rule:

Congress has authorized the Secretary to impose conditions on the receipt of Medicaid and Medicare funds that “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.” COVID-19 is a highly contagious, dangerous, and—especially for Medicare and Medicaid patients—deadly disease. The Secretary of Health and Human Services determined that a COVID-19 vaccine mandate will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients. He accordingly concluded that a vaccine mandate is “necessary to promote and protect patient health and safety” in the face of the ongoing pandemic.

There are a couple of big takeaways that emerge from this comparative analysis. First, two justices—Chief Justice Roberts and Justice Kavanaugh—voted with the majority in both cases, joining the other three conservative justices in rejecting the OSHA rule and the three liberal justices in upholding the HHS rule. Going forward, they likely will set the parameters for what is and what is not a proper exercise of executive branch authority.

Second, OSHA has now rescinded its emergency temporary rule, but, in so doing, it expressly stated that it is not vacating its rulemaking process for the imposition of a permanent vaccination mandate requirement in the workplace. The OSHA opinion notes that OSHA still has the authority to impose special COVID-19 workplace rules but only “[w]here the virus poses a special danger because of the particular features of an employee’s job or workplace” such as for “researchers who work with the COVID-19 virus” or when there are unique “risks associated with working in particularly crowded or cramped environments.”

I am not sure, however, that OSHA will choose to exercise any such authority in this instance. If it does, it will need to ensure that it creates a record clearly supporting any industry-specific needs. My guess is that the agency itself is unsure how it will proceed from here, and that may depend at least in part on the future course the virus takes.

In the immediate aftermath of the issuance of the decisions, however, the White House made clear that it has no immediate OSHA engagement expectations:

As a result of the Court’s decision, it is now up to States and individual employers to determine whether to make their workplaces as safe as possible for employees, and whether their businesses will be safe for consumers during this pandemic by requiring employees to take the simple and effective step of getting vaccinated.

And we are back to where we started, at least outside of the health sector: employers must decide how to proceed themselves, and in so doing they must attempt to navigate and reconcile the morass of overlapping and conflicting state and local requirements and restrictions. And so it goes…