Denise Hill, Esq., MPA

Associate Professor of Practice in Public Administration, Drake University College of Business & Public Administration, and author, Vaccine Mandates in the Health Care Workplace: A Legal Analysis for Employers 

At 10:00 AM on January 7, 2022, the United States Supreme Court will commence a most unusual pair of hearings, on two related questions:

1. Whether a national stay should be imposed on the November 2021 Occupational Safety and Health Administration (OSHA) vaccination mandate; and

2. Whether stays covering half of U.S. states should be lifted with respect to the November 2021 Centers for Medicare & Medicaid Services (CMS) vaccination mandate.

Both questions have already developed into circuit splits, with the Sixth Circuit overturning a Fifth Circuit stay of the OSHA mandate, and the Fifth Circuit affirming a stay of the CMS mandate in some states, and the Eleventh Circuit affirming the denial of such a stay elsewhere.

During Oral Arguments, particular lines of questions provide valuable clues about the likely position that a Justice might be expected to take. Much like tea leaves, when you know what to look for, you can foretell a great deal about the potential outcome and impact of decisions, even before the Court rules. The following are lines of questioning to monitor during the upcoming hearings:

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Procedure. Are the Justices particularly concerned with procedural matters, particularly with these measures being implemented as emergency rules outside of notice and comment proceedings?

A tendency towards questions on this point may signal that a Justice might focus on narrower procedural issues, and decline to consider the constitutionality of a hypothetical federal vaccination mandate implemented through more extensive rulemaking proceedings. Notably, when OSHA promulgated its Emergency Temporary Standard (ETS), it simultaneously published the standard as a proposed rule, for which the 60-day notice and comment period would have concluded days before the scheduled oral argument date — but has since been pushed out an additional two weeks, to January 19, 2022. If the ETS is deemed stayed due to its promulgation process, OSHA could hypothetically implement the procedurally more palatable rule in very short order — although this would be a record speed for implementation of an OSHA rule.

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Temporary vs. permanent. Similarly, are there Justices who question whether the measures currently being taken are actually temporary, or are intended to put a foot in the door for permanent federal vaccination mandates? This has been a concern raised in courts, including the Supreme Court, with other measures imposed throughout the pandemic. Some Justices may be swayed by an explanation of specific markers signifying the endpoint of the rule. In particular, OSHA’s advocates before the court may note that in late December, the agency’s earlier June 2021 ETS for the healthcare industry expired. OSHA then announced that rule as withdrawn upon expiry due to the agency’s inability to formulate a permanent standard within the statutorily allotted six-month deadline.

Even if the later OSHA vaccination mandate is not stayed, it too is set to statutorily expire six months after its November 5, 2021 promulgation date. With Supreme Court oral arguments taking place on January 7, the Justices may be aware that the ETS will only remain in effect for an additional four months, possibly time enough for an objecting business to run out that clock in litigation.

In line with this concern, do any of the Justices address the fact that these rules were enacted during a federally (also state-level) declared Public Health Emergency and National Emergency — one initially declared at the federal level by the Trump Administration, and set to expire in 2024 — that gives added authority to the Executive Branch?

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Need, safety, & effectiveness. Do any of the Justices call into question the degree to which COVID-19 actually presents a danger in the regulated settings? Do they express concerns about the effectiveness of the vaccines in preventing the spread of the disease? Several of the lower court decisions addressing these mandates, despite generally prefacing their decisions with statements that the vaccines are safe and effective, do appear to doubt that vaccines are useful in stopping the spread of the disease, or that the disease itself is really that dangerous. Will such concerns be echoed by Justices of the Supreme Court?

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Overinclusive or underinclusive restrictions. Do Justices take up the argument raised in courts below that these regulations (the OSHA ETS in particular) are either too broad or too narrow in their reach? Opponents of the OSHA mandate have noted that the rule covers all businesses with over a hundred employees, even where all employees work entirely remotely, and are therefore exempted from the mandate, while at the same time it excludes businesses with any fewer then 100 employees, even if those employees work long hours in close proximity.

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Employer compliance. Do any Justices focus on the burden these mandates have on the ability of employers to carry on their business? Do they raise, as the Sixth Circuit did, the ability of specific employers to administratively seek alternatives to compliance, such as 29 U.S.C. § 655(d), a provision in the OSHA statute which allows employers to seek a variance from an OSHA standard?

Alternatively, do any Justices discuss the effect of having sick workers on employee safety, and on the larger economy or health care system overall?

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Vaccine mandate caselaw. Is there much discussion regarding the long line of cases regarding mandatory vaccination outside of the employment context (e.g., education)?

The seminal 1905 Supreme Court case of Jacobson v. Massachusetts upheld a community’s vaccine mandate during a prevalent outbreak of smallpox. Do any of the Justices appear to suggest this case should be overturned, or that a vaccine mandate is too great of an intrusion on individual liberties in today’s society? Do Justices compare the COVID-19 pandemic with the smallpox outbreak in Jacobson, and the continuing danger of smallpox addressed in the 1922 Supreme Court case of Zucht v. King (upholding the right of the San Antonio school district to require that students be vaccinated to attend school), or do they distinguish the facts of these cases?

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Federalism. Do their questions read as limiting governmental authority to mandate vaccines to the states (who can delegate it to local governments), which limits the corresponding power of the federal government to act in the same sphere? Conversely, do they treat the power to order vaccine mandates as governmental authority that can be appropriate for various levels of government (i.e., local, state, and federal) depending upon the circumstances (e.g., like quarantine and isolation)? Do the parties or justices acknowledge the role or impact of state laws regarding vaccine mandates? For example, if a state law conflicts with a Federal Mandate, would the Supremacy Clause apply?

Do Justices specifically question whether the seminal 1905 vaccination mandate case of Jacobson v. Massachusetts can be read as an assignment of power to the states, thereby limiting the corresponding power of the federal government to act in the same sphere? Such a line of questioning would indicate that addressing federalism concerns was at the top of the thinking of that Justice.

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Differing purposes for each mandate. Do Justices seem to make the distinction between the public policy purposes for the OSHA ETS and the CMS IFR? The OSHA ETS ostensibly aims to protect employees from recognized hazards in the workplace, and the CMS IFR aims to protect the life and health of medically fragile patients who receive care reimbursed by the federal government, as well as preventing COVID-19 from overwhelming the already vulnerable U.S. health care system. For example, do they raise questions about the Federal government’s Constitutional spending power and the corresponding ability to set conditions on spending? In that regard, do they address CMS Conditions of Participation on the prevention and response to Healthcare Acquired Infections or other relevant requirements that have been upheld by the courts? Likewise, do Justices raise the precedents of the 1990 OSHA blood-borne pathogen standard, recently-expired June 2021 OSHA COVID-19 ETS for the healthcare industry?

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Medical and religious exemptions. Finally, do any Justices focus on issues or cases revolving around the availability of medical, religious, or other exemptions from these vaccination mandates? A focus on questions regarding these issues may signal that a Justice would require OSHA and CMS to modify their mandates to broaden the entitlement to exemptions, rather than dispensing with them altogether.

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Notably, oral argument in this matter is only occurring at all because the matter was moved from the Court’s shadow docket to its explicit caseload – a move that itself signifies the Court’s understanding of the historic nature of these proceedings. Details of the questions aside, it will be interesting to see whether the tone of the Court reflects the somber gravity of the circumstances through which the nation endures.

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Author contact information:

Prof. Abramson and Prof. Hill are pleased to advise with respect to questions that arise with respect to this article, the January 7, 2022, Supreme Court oral arguments, and vaccine law matters generally. They can be reached at:

briandeanabramson@gmail.com

denise.hill@drake.edu