University of Pennsylvania Carey Law School Professor of Law Allison K. Hoffman, an expert in health care law and policy, and Eric Feldman, Heimbold Chair in International Law, reflect on the Supreme Court decisions regarding President Biden’s vaccination and testing mandates for large businesses and health care workers.
“This afternoon, the Supreme Court left intact a Health and Humans Services (HHS) rule requiring that health care workers be vaccinated as a condition of facilities receiving Medicare and Medicaid dollars, but stayed (placed on hold) a similar mandate issued by the Occupational Safety and Health Administration (OSHA) for all workplaces with over 100 employees,” writes Hoffman. “Both cases concern whether the agency’s rules were within the bounds of the underlying statutes that that gives these agencies authority. This Supreme Court has begun to narrow the scope of agency authority, including with today’s decision on the OSHA rule.”
“In an unsigned opinion, five justices, including Justices Roberts, Kavanaugh, Breyer, Sotomayor, and Kagan wrote that the HHS rule requiring that healthcare workers be vaccinated as a condition of their facilities receiving Medicare and Medicaid dollars is within the agency’s statutory authority to impose ‘health and safety’ regulations. The opinion lists various examples of the conditions such facilities must meet, including rules on patient care, infection control, and qualifications of health care workers to portray the vaccine mandate similar to what the agency has done, and can, do.”
“In contrast, the Court in another unsigned opinion characterized the OSHA rule as outside of the agency’s mandate to protect occupational safety. The court pointed to the fact that OSHA had never adopted such a broad public health regulation before in its 50 years of operation to keep workplaces safe—a point that ignores the unprecedented moment in which we all live, and work.”
Eric Feldman is an expert in comparative public health law, particularly in the context of regulations surrounding COVID-19 and other urgent policy issues.
“Unfortunately, and to the great detriment of the health and safety of American workers, the conservative majority of Justices believe that OSHA lacks the power to impose a workplace test or vax mandate,” Feldman writes.
“In fact, for OSHA it is ‘head I win, tails you lose,’ as Justice Gorsuch makes clear in his concurrence. In his view, Congress has not given OSHA the power to issue such a test or vax mandate. If it did, he claims, Congress would run afoul of the Constitution because giving OSHA such expansive power would constitute ‘an unconstitutional delegation of legislative authority.’”
“In expressing their distaste for robust regulatory action, the majority has denied OSHA the opportunity to protect millions of workers from the possibility of COVID-19-related hospitalization and death.”
These stories appear in Penn Law News.
