U.S. Supreme Court Gets Technical on Covid-19 Vaccine Mandates

Since the writing of my latest blog post, Courts Side with the Vaccine, the U.S. Supreme Court has published two rulings on COVID-19 vaccine mandates.

In NFIB v. OSHA, 142 S. Ct. 661 (2022), the Court struck down a rule promulgated by the Occupational Safety and Health Administration (OSHA) that required employers with more than 100 employees to mandate vaccination or weekly testing for all its employees.

In Biden v. Missouri, 142 S. Ct. 647 (2022), the Court upheld a rule created by the U.S. Department of Health and Human Services (DHHS) that mandated vaccination for health care workers in facilities that receive Medicare or Medicaid federal funding.

Why the different rulings? The Supreme Court in the NFIB case did not medically discredit the vaccine because “[t]he question before [it] [wa]s not how to respond to the pandemic, but who holds the power to do so.” In other words, the issue was the scope of OSHA’s authority and the rule not having a more tailored approach to occupational hazards, not the efficacy of a vaccine or vaccination policy.

This is why the Biden case had a different result; on top of vaccination decreasing the transmissibility of COVID-19 and the likelihood of staff shortages, DHHS pointed to the effects non-vaccination had on its Medicare and Medicaid recipients. Patients were foregoing medical treatment out of fear that they would get COVID-19 in a health care facility. For all these reasons, the Court believed the DHHS rule was appropriately tailored. For employers, this means tying their vaccination policy to concerns about their specific industry, clientele, workforce, and/or geographic region may be crucial.

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