Supreme Court Finds CMS COVID19 Vaccine Mandate Permissible, Not OSHA

by Mark A. Fadel, MD, JD, Yolanda L. Troublefield, MD, JD •

The Supreme Court ruled two different ways on vaccine mandates. With COVID-19 vaccines continuing, it’s important to understand why they ruled differently.

The Supreme Court of the United States (SCOTUS) recently reviewed two sets of consolidated cases: 
The former set of cases refers to the Occupational Safety and Health Administration (OSHA) requirement that all employers with 100 or more employees mandate full vaccination of its employees against COVID-19 unless they are eligible for a medical or religious exemption. The later set of cases refers to the mandate that all Centers for Medicare & Medicaid Services (CMS) participating facilities to do the same. Together, these decisions would have impacted over 101 million workers.
 

OSHA Mandate Is Not Constitutional

On Jan. 13, 2022, SCOTUS agreed with opponents of the requirements and ruled that OSHA’s mandate was unlawful (https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf). Citing the original law creating OSHA (84 Stat. 1590 and 29 U.S.C. §651), Congress intended OSHA to ensure “safe and healthful working conditions.” Using a variety of legal standards, OSHA attempted to enact this vaccine mandate for more than 84 million workers under an emergency standard that requires heightened scrutiny by SCOTUS—meaning the law must be vitally important, necessary, essential, and indispensable. The original mandate also had several exemptions, including for employers whose employees work remotely 100% of the time and who work exclusively outdoors. Ultimately, OSHA believed it was the only option to relieve the problem it was facing during a global pandemic, but SCOTUS disagreed. In response, SCOTUS noted that it believed that the mandate limitations were “illusory,” because they ultimately treated a lifeguard the same way they treated a medic, making no distinction between the level of exposure risk between jobs.

However, the decision to shut down the mandate didn’t stem from a scientific argument, but rather a constitutional one: OSHA and, ultimately, Congress, did not have the authority to execute the mandate. This requires an understanding of the separation of powers in U.S. government—SCOTUS believes that the mandate rule is a “broad public health measure” [italics ours] that OSHA did not have the power to enact. Instead, OSHA may develop rules regarding workplace standards, and, since COVID19 spreads in any environment and not just the workplace, OSHA exceeded its delegated authority. (Of note, three of the nine justices disagreed with this argument.)
 

CMS Mandate Upheld

Contrary to its ruling in the OSHA cases, SCOTUS ruled that CMS does have the authority to impose a vaccine mandate for participating facilities because its power stems from the ability to legislate “in the interest of the health and safety of individuals who are furnished services”—aka, our patients (https://www.supremecourt.gov/opinions/21pdf/21a240_d18e.pdf; https://www.cms.gov/files/document/qso-22-09-all-injunction-lifted.pdf). Clearly, vaccination against COVID-19 for healthcare workers falls under this power. SCOTUS even cited the Hippocratic oath—do no harm—as a reason for the appropriateness of this ruling. This mandate acts in a way similar to the myriad regulations that healthcare professionals are bound by every day, such as infection prevention and control and other vaccine mandates pertaining to hepatitis B and influenza. This mandate covers 10 million healthcare workers.
 

Final Thoughts

It’s worth noting that these decisions don’t directly answer whether these mandates are lawful, but simply determine whether the mandates stand while the lower courts determine their legality. The legal nuances here are important, but it’s likely that the SCOTUS opinion on these questions of law, from the highest court in the land, have answered their validity already.

In light of this ruling, CMS has updated its guidance that now applies to facilities in Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, and Wyoming. These states joined the lawsuit discussed above and their deadline for full compliance was March 15, 2022. The remaining states had until Feb. 28, 2022, as stated in the original CMS ruling, which was published on Nov. 5, 2021. Texas had until March 21, 2022 (https://www.cms.gov/files/document/qso-22-11-all-injunction-lifted.pdf).

As we move on from this historic pandemic ruling, it’s important to continue to understand the urgency of preventing the spread of this deadly virus. At the time of this ruling, as of Jan. 12, 2022, the daily new cases rose 33.2% compared with previous seven-day moving average. From Jan. 5–11, 2022, new hospitalization admissions rose 24.5% compared to the prior seven days. The current death rate is also rising 1.6% compared to the week prior (https://covid.cdc.gov/covid-data-tracker/#cases_totaldeaths). As of Feb. 6, 2022, nearly a million people had died. As of Jan. 13, 2022, only 62.8% of the U.S. population had been fully vaccinated (https://www.cdc.gov/mmwr/volumes/71/wr/mm7104e2.htm#T1_down). By Dec. 4, 2021, only 25 states were reporting case numbers and deaths based on vaccination status. The CDC reported that 80% of the deaths were among the unvaccinated (https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/index.html).

All this means that the pandemic isn’t over. We are all, healthcare worker or not, still at risk.

Dr. Fadel is a current otolaryngology resident at the University of Pittsburgh Medical Center in Penn. He serves as the resident representative for the Legislative Affairs Committee within the American Academy of Otolaryngology–Head and Neck Surgery Board of Governors. Dr. Troublefield is a clinical instructor of otolaryngology at Brown University in Providence, R.I., and chair of the Legislative Affairs Committee within the American Academy of Otolaryngology–Head and Neck Surgery Board of Governors Executive Committee.

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