OFCCP Weekly Review: January 2022 # 2 | Association of Direct Employers

Friday January 7, 2022: Oral Arguments Suggest Questionable US Supreme Court OSHA Has Power to Require Vaccination in ETS; Supporters of CMS health worker immunization mandate more optimistic

SCOTUS heard oral arguments on an expedited basis with respect to both the OSHA ETS and the Medicare / Medicaid service provider’s CMS vaccine mandate. The case involving OSHA ETS is National Federal of Independent Business v. Department of Labor, Occupational Safety and Health Administration, File n ° 21A244 (December 17, 2021). The case involving the CMS vaccine mandate of the Medicare / Medicaid service provider is Biden v. Missouri, File n ° 21A240 (December 16, 2021).

SCOTUS has not indicated when it will decide in either case. Nonetheless, the feeling was that the court understood the urgent nature of the two issues and would likely issue just one decision this week, as we suggested last week.

Nat’l. Federation of Independent Businesses, et al. against OSHA

In its moving documents, the Appellant States contend that the Sixth Circuit Order reinstating OSHA ETS was ill-decided because OSHA can only regulate the hazards workers face in the workplace, as opposed to the dangers that workers face in the workplace. dangers widely present in the public. Additionally, COVID-19 is not considered a “serious danger” to workers in particular since the risk of death for unvaccinated workers is not significantly greater than the risk for vaccinated workers. In addition, the appellant States argued that the ETS did not comply with the requirements of the Occupational Safety and Health Act (“OSH Act”) since the warrant is not “necessary” for protect workers.

The private appellant entities argued that allowing the ETS to come into effect would cause irreparable harm to companies unable to pay for tests or keep employees leaving their jobs. Finally, private appellant entities argued that the “major issues” doctrine prohibited the use of OSHA to impose a vaccination mandate; in particular, Congress has not clearly delegated to OSHA such a broad scope of OSHA’s regulatory power to make an ETS valid for an airborne virus.

In opposition, the Biden administration argued that OSHA had simply exercised its power under the OSH Act by issuing an ETS necessary to protect employees from serious danger of exposure to agents or to physically harmful hazards. Because OSHA concluded that COVID-19 is both a physically harmful agent and a new hazard causing serious danger to unvaccinated workers, the ETS was necessary to protect workers’ health. As an ETS, the Biden administration argued that neither OSHA nor the Administrative Procedure Act required a notice and comment period as normally required for rulemaking by agencies.

In oral argument, the three liberal Supreme Court justices were clear in favor of allowing OSHA to implement the ETS. Judge Elena Kagan focused on the fact that COVID would appear to be a serious risk and that ETS is needed to address the ‘not typical’ public health situation the country faces. Judge Stephen Breyer has expressed his cynicism that the ETS shutdown would be in the public interest and has been particularly vehement in the face of the growing number of COVID-19 cases due to the fact that Omicron has showed a continued need for action. Judge Sonia Sotomayor also noted concern over continued infection rates (including mistakenly claiming deaths from COVID-19 are at an all time high, the Omicron variant is as deadly as the Delta variant in numbers. of unvaccinated and erroneous hospitalizations), while suggesting that OSHA’s regulatory authority is a federal “police power” to act on public health.

However, the six conservative justices did not appear likely to vote in favor of allowing OSHA to implement the ETS. While Judge Samuel Alito has suggested a potential middle ground whereby the court could order a short administrative stay of the mandate, Chief Justice John Roberts (as the court’s “decisive vote”) appeared to suggest that he would side with the cancellation of the ETS. Both Chief Justice Roberts and Justice Neil Gorsuch noted when questioning that immunization warrants and orders are routinely exercised by states and that the Biden administration’s “agency-by-agency” approach to instituting mandates of immunization. vaccination is an attempt to circumvent Congress’ inability to legislate. Questioning from Judge Amy Coney Barrett suggested that the broad and generalized approach of the ETS is a “one-size-fits-all” standard, and Judge Brett Kavanaugh focused on the issue of “major issues” under a theory that OSHA did not have authority for an ETS vaccine.

Given the tenor of the pleadings, it is likely that the Supreme Court will order the implementation of the ETS.

Biden v. Missouri

The Biden administration, as the appellant (appellant), in written documents argued that Congress has given the Department of Health and Human Services (“HHS”) broad authority over the provision of nursing care. health and safety standards that an establishment must meet. purposes. The Administration argued that vaccination against COVID-19 is necessary in the interests of patient health and safety. As an example, the Administration cited the long history of requiring health care facilities to establish infectious disease prevention and control programs.

States opposing the mandate have argued in their written documents that implementing a vaccine requirement will create a staffing crisis in health facilities, especially in rural America. Such staff shortages would pose a real danger to the health and safety of patients unable to find adequate medical care. In addition, the law on which the Administration relied in seeking to exercise the power to require vaccinations is an “internal law” which is not broad enough to require vaccination. Allowing the Administration to use such a statute as sufficient authority for a vaccination mandate would impermissibly extend the statute to allow any action on the part of the HHS. Finally, the states argued that HHS ‘failure to provide notice and an opportunity for public comment rendered the mandate procedurally deficient.

Contrary to oral argument regarding OSHA ETS, at least one conservative judge hesitant to implement OSHA ETS appeared to recognize that CMS’s mandate to vaccinate health care providers presented a danger and concern. more acute. Specifically, Chief Justice Roberts focused his questions on the healthcare context of CMS’s immunization mandate. His view was that the healthcare context presented a strong link between a threat to health and the provision of healthcare by the government through Medicaid and Medicare. Chief Justice Roberts also appeared to recognize that the Secretary of Health and Human Services had broader authority over public health prerogatives than OSHA.

Further, Justice Kavanaugh noted that private health facilities were not a party to oppose CMS’s vaccination mandate. Rather, states argued only on behalf of the “citizens” who run private facilities. Judge Kavanaugh’s questions suggested the possibility that he might rely on the legal doctrine of “representation” (that states did not have standing to challenge the vaccination mandate because the mandate had not harmed their interests. legal) to reject state opposition to the CMS immunization mandate.

Finally, Judge Barrett’s questions regarding the CMS mandate on vaccines also appear to have a problem with the “one size fits all” aspect of the mandate; however, administration attorney Biden suggested the court could lift part of the Fifth Circuit order directing the CMS vaccine warrant. This “middle ground” could provide judges concerned with the HHS public health objectives targeted by the mandate to enable the implementation of facilities supporting the population particularly vulnerable or at risk of COVID-19. Given the tenor of the interrogation, healthcare providers receiving Medicaid or Medicare funding should be more moderate in any hope that the Supreme Court will end CMS’s vaccination mandate.

Andrew B. Reiter