As many predicted late last week, the United States Supreme Court today reinstituted the stay of enforcement of the Biden Administration's OSHA mandate in National Federation of Independent Business v. Department of Labor. As with the Fifth Circuit's original grant of the stay a few months back, the Opinion steers clear of the more emotionally charged questions regarding Covid-19 vaccines, instead focusing on the more fundamental question of whether it is appropriate for the Biden Administration to use an OSHA emergency workplace safety standard to impose a Covid-19 vaccine or test requirement in covered workplaces, estimated to impact approximately 80 million workers. The Court found that the applicants - comprised of States, businesses, trade groups and nonprofit organizations - were likely to succeed on the merits and that the equities did not weigh in favor of allowing the mandates to be enforced while the litigation moved forward. It is important to note that this is not a final determination on the merits - however, until such a determination is reached, the mandate cannot be enforced.
Also today, in Biden v. Missouri, the Court granted the Biden Administration's request for a stay of injunctions entered in District Court in Missouri and Louisiana, which prevented the Secretary of Health and Human Services from enforcing a rule that provides that in order to receive Medicare and Medicaid funding, participating facilities must ensure that their staff—unless exempt for medical or religious reasons—are vaccinated against COVID–19. Here, the Court reasoned that "Congress authorized the Secretary to promulgate, as a condition of a facility’s participation in the programs, such 'requirements as [he] finds necessary in the interest of the health and safety of individuals who are furnished services in the institution,'" and that the vaccine requirement was a valid exercise of that authority.
While these two cases may seem to conflict, this sentence from the Biden v. Missouri opinion provides the best insight into the Court's thinking: "The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it. At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have."
The question, then, is whether the Act plainly authorizes the Secretary’s mandate. It does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures. Confirming the point, the Act’s provisions typically speak to hazards that employees face at work. And no provision of the Act addresses public health more generally, which falls outside of OSHA’s sphere of expertise. (Internal citations omitted).