As Court Rulings Over Vaccine Mandates Evolve Forward, One Expert Weighs In
Things are heating up tremendously right now with regard to court rulings on the three key federal vaccine mandates—the mandate issued by the Centers for Medicare and Medicaid Services (CMS) for healthcare workers; the mandate issued by the Biden administration for federal contract workers; and the mandate issued for private employers of 100 employees or more, issued by OSHA, the Occupational Safety and Health Administration, which is part of the U.S. Department of Labor.
A major development took place on Friday, Dec. 17, when a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, located in Cincinnati, reversed an initial circuit court ruling, finding in favor of OSHA and the Biden administration, and affirming OSHA’s vaccine mandate for employers with 100 or more employees. The full opinion can be found here.
Forbes’s Joe Walsh explained what happened in a news report on Friday on the ruling, writing that “A federal appeals court allowed the Biden Administration’s Covid-19 vaccine-or-test rule for private employers to take effect Friday evening, reversing an earlier ruling blocking it, in a win for the federal government amid multiple legal challenges to its vaccine mandates. The 6th Circuit Court of Appeals voted 2-1 to dissolve a different appellate court’s ruling that stopped the Occupational Health and Safety Administration from requiring all employers with 100 or more workers to ensure that their employees are vaccinated against Covid-19 or take frequent tests. The 6th Circuit’s two-judge majority — appointees of former Presidents Barack Obama and George W. Bush — argued that Congress gave OSHA broad power to issue emergency workplace rules to protect people from severe dangers like infectious diseases. The dissenting judge — appointed by former President Donald Trump — said OSHA overreached its legal authority and didn’t demonstrate why a sweeping nationwide vaccine-or-test rule that applies to tens of millions of Americans is necessary. OSHA’s rule was originally set to take effect early next month, but it has been on hold since early November, when the 5th Circuit Court of Appeals temporarily blocked it.”
A key element in the OSHA Emergency Temporary Standard (ETS) that garnered notice by the Sixth Circuit was how the ETS is structured. As Judge Jane B. Stranch wrote in the court’s 33-page opinion, “The ETS does not require anyone to be vaccinated. Rather, the ETS allows covered employers—employers with 100 or more employees—to determine for themselves how best to minimize the risk of contracting COVID-19 in their workplaces. Id. at 61,438 (allowing employers to “opt out” of any vaccination policies). Employers have the option to require unvaccinated workers to wear a mask on the job and test for COVID-19 weekly. Id. They can also require those workers to do their jobs exclusively from home, and workers who work exclusively outdoors are exempt. Id. at 61,419. The employer—not OSHA—can require that its workers get vaccinated, something that countless employers across the country have already done. Id. at 61,436 (“[T]his ETS offers employers a choice in how to comply . . . .”).”
Further, Judge Stranch wrote, “The dissent assumes our conclusion rests on the length of time (since 1970) OSHA has regulated workplaces and that we miss the point that the major questions doctrine is also about the ‘scope or degree’ of the power an agency wields. (Dissent Op. at 53) Our conclusion rests on much more, including: An extensive catalog of OSHA’s regulatory authority, citing the text of the Act and precedent, both replete with references that contemplate the authority OSHA uses here; the actual components of OSHA’s work—such as its many years of regulating illness in the workplace; and other statutes acknowledging OSHA’s authority, including one that expressly allocates funding to OSHA for its intervention in the COVID-19 crisis. This listing shows that OSHA was granted the authority that it exercised. The case cited by the dissent, FDA v. Brown & Williamson Tobacco Corporation, is inapposite because there the FDA made the claim that its authority to regulate ‘drugs’ extended to cigarettes, but Congress had repeatedly declined to grant the FDA that authority. See 529 U.S. at 125, 137–39. Any doubt as to OSHA’s authority is assuaged by the language of the OSH Act. In arguing that OSHA does not have this authority, Petitioners and the Fifth Circuit rely on the Supreme Court’s and the Sixth Circuit’s recent cases invoking the major questions doctrine regarding a nationwide moratorium on evictions in counties experiencing high levels of COVID19 transmission. See Ala. Ass’n of Realtors v. U.S. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485 (2021); Tiger Lily, LLC v. U.S. Dep’t of Hous. & Urb. Dev., 5 F.4th 666 (6th Cir. 2021). The Centers for Disease Control and Prevention (CDC) promulgated the moratorium under § 361(a) of the Public Health Service Act (PHSA), referencing its ‘broad authority to take whatever measures it deems necessary to control the spread of COVID-19.’ Ala. Ass’n of Realtors, 141 S. Ct. at 2488. The Supreme Court determined that clear language in the PHSA expressly limited the scope of the CDC’s authority to specific measures, which scope did not include moratoria. Id. The Court noted that ‘[e]ven if the text were ambiguous, the sheer scope of the CDC’s claimed authority under § 361(a) would counsel against the Government’s agency interpretation.’ Id. at 2489. Because 80 percent of the United States population fell within the moratorium, which would cost nearly $50 billion, and the moratorium intruded into an area traditionally left to the States, landlord-tenant law, the Court noted that if Congress wished the CDC to have such authority, it needed to ‘enact exceedingly clear language’ to that effect. Id. (quoting U.S. Forest Serv. v. Cowpasture River Pres. Ass’n, 140 S. Ct. 1837, 1850 (2020)).”
What’s more, Judge Stranch noted early on in her opinion that “The record establishes that COVID-19 has continued to spread, mutate, kill, and block the safe return of American workers to their jobs. To protect workers, OSHA can and must be able to respond to dangers as they evolve.”
That ruling reversed the ruling on Nov. 12 by the U.S. Court of Appeals for the 5th Circuit that had temporarily put the mandate on hold, the calling the rule “fatally flawed” and “staggeringly overbroad.” But through an obscure process known as the multicircuit lottery, all of the challenges were subsequently assigned to the 6th Circuit. A divided panel of that court reinstated the OSHA mandate on Friday after the full 6th Circuit rejected, by a vote of 8-8, a request to have the case be decided by the full court.
And then on Monday, Dec. 20, as Fox13 Salt Lake City’s Ben Winslow reported, “Utah and dozens of other states have asked the U.S. Supreme Court to rule on a federal occupational safety rule that mandates COVID-19 vaccines or testing for private businesses with more than 100 employees. The filing was anticipated after the 6th U.S. Circuit Court of Appeals allowed the vaccination requirement to go forward. Utah Attorney General Sean Reyes had vowed an appeal on behalf of the state.”
"This case does not present the question whether vaccines or vaccine mandates are wise or desirable. Instead, it presents the narrow questions whether OSHA had authority to issue the Mandate, and whether it lawfully exercised whatever authority it had," the attorneys general of 27 states wrote in the filing.”
One expert’s perspective
On Monday, just before the appeal of the case to the U.S. Supreme Court was announced, Healthcare Innovation Editor-in-Chief Mark Hagland interviewed Keith A. Wilkes, a shareholder in the Tulsa-based Hall Estill law firm, about this situation. Wilkes, who has spent 26 years practicing labor and employment law, shared his perspectives on this complex situation. Below are excerpts from that interview.
Starting at a 40,000-feet-up level, what is your sense of where the OSHA litigation is going? Will the U.S. Supreme Court potentially tell the Biden Administration that its vaccine mandates represent an overstep?
I might have answered differently before Friday evening. On the OSHA ETS, the day after it was issued, the Fifth Court of Appeals entered an order. Part of the law under which the ETS was issued involves a process that requires that if there are more than a certain number of challenges nationwide, OSHA notifies the federal judiciary about the number of appeals, so that triggers a multi-circuit litigation panel. So what they did was to literally take ping pong balls, representing each circuit, and the Sixth Circuit was chosen, and given jurisdiction over all the challenges in all the circuits in the country. Sixth Circuit Court of Appeals was given jurisdiction over all the courts of appeals. Cincinnati. The Sixth Circuit encompasses the states of Kentucky, Michigan, Ohio, and Tennessee.
So the Sith Circuit was given jurisdiction. A lot of people think of the Sixth as the second-most-conservative appeals court after the Fifth, and that it would be a court very friendly to the challengers of the OSHA ETS. The state attorneys general asked the entire Sixth Circuit to rule. So the full Sixth Circuit denied that request. So Friday evening, the Sixth Circuit dissolved the stay from the Fifth Circuit. So the OSHA ETS is back on again and has new life. And by Saturday morning, OSHA issued a press release giving new deadlines, because the deadline had passed. And it was a two-to-one ruling. The person who wrote it was an Obama appointee, but the appeals court judge who joined was initially an Ronald Reagan appointee to the district court bench and was elevated by George W. Bush to the appeals court. And the opposing was a Trump appointee. It eviscerated the dissent. So this now sets up for the U.S. Supreme Court to decide. It’s a shadow docket, per the immediate challenge. They could take it on almost immediately. The Supreme Court will vote amongst themselves as to whether to do anything on it or let it stand. Remember that in the case involving the New York City healthcare workers’ vaccine mandate, there were never any oral arguments. In fact, the U.S. Supreme Court doesn’t even have to issue an opinion. In the New York City healthcare workers’ case, Justice Neil Gorsuch issued a dissenting opinion, and Justice Samuel Alito joined it.
And now, the Supreme Court could end up voting by majority not to take it up, in which case the ETS would simply stand. And that could happen pretty quickly. The Supreme Court so far has not interfered with any of the mandates. However, this is a little different. One of the things the Supreme Court has been sensitive to, particularly the conservative group—administrative agencies overstepping their bounds. That wasn’t at play in the New York City healthcare mandate that went to the Supreme Court on an emergency challenge. That was a First Amendment argument. Here, a big part of the argument is that Congress didn’t delegate to OSHA as part of the Labor Department—the Occupational Safety and Health Act didn’t delegate that level of power.
Do you think it’s likely that the Supreme Court will simply let the Sixth Circuit’s decision stand? Or will there be oral arguments in the case?
If they do say they’re going to take it up, it wouldn’t bode well for the Biden administration.
What are the chances of the various possibilities?
I would say there’s a greater chance, given how the Court has ruled on other COVID mandates, effectively upholding all of them, that there’s a better likelihood of the federal government prevailing.
Could the CMS healthcare workers’ mandate be perceived legally as separate, because it involves healthcare workers?
It could be perceived as such. Public health and safety will always have a heightened attention, in the same way we allow mandatory retirements for commercial airline pilots. So, yes—it’s hands-on healthcare, so yes, protecting those folks will be a big concern.
Might it be more intellectually difficult for the Supreme Court to knock down the CMS mandate, given that it involves direct threats to the public health?
They would have to find a legal path to get to the right answer, and there are different paths you can take. I think they’re more inclined to find a path that justifies mandates, given what’s happened in the country in the past year and a half, and the courts are erring on the side of protecting the public health. So the Supreme Court could come up with some very nicely written opinion to answer the question, and I think there’s more of an inclination to justify a thumbs-up, given a path they could find to justify it.
