Today’s Federal Vaccine Mandate Cases

Today (13 January 2022) the U.S. Supreme Court handed down two decisions in National Federation of Independent Businesses v. Department of Labor and Biden v. Missouri. The NFIB case deals with the Federal mandate that all employers with 100 or more employees require that their employees either provide proof of COVID vaccination or be masked at work and submit weekly COVID tests, at their own expense, to their employer. Biden v. Missouri deals with a different Federal mandate, specifically that all health care workers employed by employers who receive Medicare or Medicaid funding again either provide proof of COVID vaccination or be masked at work and submit weekly COVID tests, at their own expense, to their employer.

Clicking the case names in the first paragraph will link you to the slip opinions issued today by the Supreme Court.

First, it’s important to note that these are not final decisions. They are in the posture of a review of a contested preliminary injunction. The critical issue up for review is whether or not the Government is likely to prevail. It’s not the actual final decision of the cases; either side could and probably will try to develop more facts if the litigation continues past this point. Whether they would succeed is a separate question. So the first thing to remember is, these cases aren’t over yet. And the legal anaysis in these cases, while still reasonable and important to consider, is not necessarily going to be as deep as a final disposition would be.

Second, these cases do not address private employer mandates, or mandates imposed by a State’s government. They address the question of whether the Federal government can impose a national mandate under OSHA’s emergency rulemaking authority (in the NFIB case) and Medicare’s emergency rulemaking authority. It affects only whether the Federal government can require that such an employer impose a mandate. The rulings say nothing about a mandate that the employer adopts of its own accord, nor do they address the question of whether an individual state can require a mandate. As the concurring opinion by Justice Gorsuch begins: “The central question we face today is: Who decides?” The majority in NFIB says “Not the Federal OSHA,” with a caveat from Biden v. Missouri that “But Medicare can.”

Third, the decisions are split. The Court found the medical mandate likely to prevail, and the general mandate not likely to prevail. This means that a majority of the Court thinks the Federal government has power under the Medicare laws to impose a mandate on medical providers and their employees, but not necessarily every employer in any sector of the economy as a matter of generalized workplace safety the way the Federal government can require, for instance, hard hats on construction sites.

Fourth, even the denial of the general mandate does not prohibit the Federal government from issuing rules, either through regular rulemaking process or on an emergency basis, particular to the dangers COVID imposes on the contemporary workplace, at least in situations where the circumstances of the workplace impose a greater risk of coming into contact with a contagious person than exists in everyday life. The Federal OSHA is most certainly not done addressing COVID risks, and there are a few (very few so far) cases in which employers are being found responsible for creating workplace environments where their employees caught COVID. (These claims seem to be covered under workers’ compensation insurance, where applicable).

So what has really changed today? Perhaps not all that much. If your employer, whether you’re in healthcare or some other sector of the economy, wants to impose a vaccine mandate, in every state where I practice (California and Oregon) the employer may still do so. Nothing in the NFIB case’s reasoning prevents a general employer in any sector of the economy from imposing a mandate on its own behalf. COVID vaccine mandates imposed by the employer, by the state, or in a healthcare provider role are still valid under these cases, and employees seeking to resist the mandates are in a tough spot.

Employees may seek reasonable accommodations, and employers should consider those requests in good faith and on an individualized basis. But if the result of a good faith interactive process is that the employer does not find a reasonable alternative to vaccination, the employee has a very hard choice to make.