Yesterday the Supreme Court blocked the Biden’s Administration’s vaccine mandate for employers with over 100 employees. This is not, however, the final say on the matter, nor does it imply that an employer cannot mandate vaccination of employees. The Court has simply halted the mandate pending review by the lower courts on the grounds that the lower courts are likely to find that the Administration “lacked the authority to impose the mandate.” Central to the Court’s decision was an analysis of the Occupational Safety and Health Act in 1970, which allows OSHA to issue “emergency temporary standards” – such as the Administration’s vaccine mandate – under two conditions:
(1) “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and
(2) that the “emergency standard is necessary to protect employees from such danger.”
The Court opined that while OSHA has the power to issue such emergency temporary standards, OSHA’s power is limited strictly to occupational hazards, rather than “broad public health measures.” In the Court’s judgment, the vaccine mandate “is not an occupational hazard in most [workplaces]. 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 their dissenting opinion, Justices Breyer, Sotomayor, and Kagan had harsh words for the majority and took issue with the Court’s decision that OSHA could not implement the vaccine mandate simply because COVID is not solely an occupational hazard. They wrote, “OSHA has long regulated risks that arise both inside and outside of the workplace. For example, OSHA has issued, and applied to nearly all workplaces, rules combating risks of fire, faulty electrical installations, and inadequate emergency exits—even though the dangers prevented by those rules arise not only in workplaces but in many physical facilities.”
Employers and employees should understand that the issue before the Supreme Court was narrow: was the vaccine mandate issued by OSHA authorized under the authority granted to OSHA by Congress? Although the Supreme Court ruled that OSHA likely lacked the ability to force employers to adopt vaccine mandates, it did not say that employers cannot adopt vaccine mandates on their own. President Biden issued a statement encouraging employers to voluntarily adopt their own mandates, stating, “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.” Many employees intend to do just that. A spokeswoman from Wells Fargo, for example, said, “Wells Fargo will continue our testing program…We believe it is the right thing to do for the safety of all employees and our customers.” American Airlines similarly said that the Supreme Court’s decision “doesn’t change anything for American.”
In a related opinion also issued yesterday, the Supreme Court allowed a separate vaccine mandate – issued by the Centers for Medicare & Medicaid Services and directed at health care workers – to go forward. If you have questions about an employer’s obligations or an employee’s rights concerning COVID-19, or any other area of employment law, contact one of our attorneys at Thatcher Zavaro & Mani at 301-850-1246. www.ThatcherLaw.com. Follow us on: