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Vaccine-or-Test Mandates: U.S. Supreme Court Oral Arguments on Friday

The U.S. Supreme Court convened a special session to hear oral arguments concerning the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) and the Department of Health and Human Services’ Centers for Medicare & Medicaid Services (“CMS”) emergency rules mandating COVID-19 vaccination.


The OSHA Emergency Temporary Standard (“ETS”) requires employers with 100 or more employees to institute a policy that requires mandatory, weekly testing for unvaccinated employees not covered by applicable religious or medical exemptions. The CMS interim final rule requires vaccination of all healthcare workers at Medicare and Medicaid-certified providers and suppliers unless the worker is otherwise exempt. 


Oral arguments began with the OSHA ETS and concluded with the CMS interim rule. 


Generally, Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett focused questions upon statutory construction and whether OSHA and CMS exceeded their rulemaking authority granted by Congress under their respective statutes as well as the scope of the rules might be limited. Justices Elena Kagan and Steven Breyer were more focused on public health concerns, precedent, and whether the rules were neutral as applied and as written. 


Justice Clarence Thomas questioned whether OSHA could meet the legal standards for the ETS being “necessary” when balancing the risks and benefits for employers, employees, businesses, the government, and public health and safety. Additionally, Justice Thomas questioned whether the requirements for an “emergency” were met for issuance of an ETS given that COVID-19 has been around for over two years. Justice Thomas was critical that the government did not follow otherwise required notice and opportunity for comment procedures.


Justices Kagan and Breyer’s questioning focused on the grave danger to public health caused by the COVID-19 pandemic. Justice Kagan also noted that vaccinations are recognized as the best approach, and testing and masking is the second-best option to protect public health and safety. Justice Kagan added that the ETS is broad to reflect the far-reaching impacts of the pandemic.


Associate Justice Steven Breyer criticized the notion of a stay that is too long because of the exponential rise in hospitalizations and deaths of unvaccinated individuals. Justice Breyer added that there are exceptions in the ETS to narrow the scope of the mandate.


Chief Justice Roberts and Justice Barrett inquired as to the ETS being too broad. They appeared to be more supportive of the ETS if it were more targeted to industry-specific restrictions. However, Chief Justice Roberts appeared to agree with Justice Kagan that vaccinations are the best approach to protect the public health and safety of workers during the novel COVID-19 pandemic.


Though decisions of the Supreme Court should never be predicted on the basis of oral argument, it did appear that, overall, a majority of the Justices seemed more inclined to uphold the CMS healthcare worker vaccination mandate than the OSHA ETS. A majority seemed more receptive to the CMS healthcare worker vaccination mandate because it is narrower, targets a specific industry, and receives federal funding (allowing the government to dictate where monies are allocated).   

The next Order List will be released on Monday, January 10, 2022, but the Court may not issue its decision for several weeks. 


OFW Law will continue to monitor for updates on this litigation. In the meantime, please contact us with any questions.

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