“This Supreme Court has begun to narrow the scope of agency authority, including with today’s decision on the OSHA rule.”
University of Pennsylvania Carey Law School Professor of Law Allison K. Hoffman, an expert on health care law and policy, has issued the following statement on today’s 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. 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.
Hoffman was co-editor of the Oxford Handbook of U.S. Health Law,, which offers the most comprehensive review of U.S. health law in the post-ACA era.