Americans continue to grapple with the COVID-19 pandemic and its effects on everyday life, both inside and outside the workplace. So far, the best defense against severe illness and death related to COVID-19 has been vaccination. To effectively halt the transmission of COVID-19, the scientific community believes that the United States must achieve an immunization rate of 85% – meaning that almost every adult and adolescent across the country would be immunized.1 As of February 2022, however, the number of Americans who are fully vaccinated against COVID-19 has fallen short of that goal, with only about 64% of Americans having been fully vaccinated.2
To try to improve COVID-19 vaccination levels in the United States, federal, state, and local governments have issued various vaccination mandates. Not surprisingly, these mandates have been challenged in the courts.
The U.S. Supreme Court has considered several cases challenging the lawfulness of COVID-19 vaccination mandates over the past few months, including mandates by two federal agencies – the Centers for Medicare & Medicaid Services (CMS) and the Occupational Safety and Health Administration (OSHA). This article summarizes the Court’s rulings in these cases.
Vaccination Mandate for Medicare and Medicaid Facilities Workers Upheld
On Nov. 5, 2021, the CMS issued an interim final rule that required all covered workers in healthcare facilities that participate in Medicare or Medicaid to be fully vaccinated against COVID-19 unless the workers are exempt for medical or religious reasons. This mandate promptly was challenged by two coalitions of states, one led by Missouri and the other led by Louisiana, in Biden v. Missouri,3 and the case quickly made its way to the U.S. Supreme Court.
On Jan. 13, 2022, the Supreme Court ruled in a 5-4 decision that the CMS’s vaccination mandate was lawful. The Court recognized that both Medicare and Medicaid are administered by the Secretary of Health and Human Services, who has the general statutory authority to promulgate regulations “as may be necessary to the efficient administration of the functions with which [he] is charged.”4 The Court found that one of the administrative functions of the Secretary is to ensure that healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety.
Based on the scope of the Secretary’s authority to protect patient health and safety and his finding that vaccination of healthcare workers against COVID-19 was necessary for the health and safety of individuals to whom care and services are furnished, the Court ruled the Secretary’s mandate fell within the authority that Congress had granted to him.5
Justice Clarence Thomas and Justice Samuel Alito, however, issued separate dissents (which were joined by Justice Neil Gorsuch and Justice Amy Coney Barrett). Justice Thomas opined that the provisions of the statute containing language that the CMS may regulate Medicare and Medicaid facilities in the interest of “health and safety” were too scattered to provide an unqualified delegation to the Secretary to adopt health and safety regulations.
He concluded that if Congress wanted to grant the CMS authority to issue a nationwide vaccination mandate across all facility types receiving Medicare and Medicaid funds, it would have done so expressly and not hidden that authority in “vague and ancillary provisions.” “If Congress had wanted to grant CMS authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly. It did not.”6
OSHA Cannot Mandate COVID-19 Vaccinations in Workplaces
On Nov. 5, 2021, OSHA issued an emergency temporary standard (ETS) requiring all employers with 100 or more workers to adopt a mandatory vaccination policy or, alternatively, require their unvaccinated workers to wear a face covering at work and undergo weekly COVID-19 tests. OSHA issued the ETS pursuant to 29 U.S.C. § 655(c)(1), which permits it to issue on ETS when it can show that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards” and that the “emergency standard is necessary to protect employees from such danger.”
Joseph E. Gumina, William Mitchell 1990, is a shareholder with O’Neil, Cannon, Hollman, DeJong & Laing S.C., Milwaukee, and is the chair of its Labor and Employment Practice Group. He is licensed to practice law in Illinois and Wisconsin and has extensive experience representing the interests of management in a vast array of labor and employment matters.
Grant C. Killoran, Minnesota 1989, is a shareholder with O’Neil, Cannon, Hollman, DeJong & Laing S.C. He is the past chair of the firm’s Litigation Practice Group and represents clients in Wisconsin state and federal courts, and courts throughout the country, with a focus on complex business and healthcare disputes.
Erica N. Reib, Marquette 2011, is a shareholder with O’Neil, Cannon, Hollman, DeJong & Laing S.C. She represents businesses with regard to their employment law matters, including policies and practices, investigations, and litigation.
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OSHA issued the ETS because it found that the health risks to unvaccinated workers from COVID-19 presented such an exceptional circumstance that unvaccinated workers face a grave danger from exposure to COVID-19 in the workplace and a vaccination-or-test mandate is necessary to protect those workers. OSHA predicted that its ETS would save more than 6,500 lives and prevent more than 250,000 hospitalizations over the six-month period in which it would be in effect.7
This mandate promptly was challenged by 23 states in multiple federal circuits, including a group of five states led by Texas, in National Federation of Independent Business v. Department of Labor,8 a case that also quickly made its way to the Supreme Court.
On Jan. 13, 2022, following conflicting decisions on the mandate by the Fifth and Sixth Circuit Courts of Appeal, the Supreme Court stayed OSHA’s ETS in a 6-3 decision. The Court found that although Congress provided OSHA defined powers to set workplace safety standards under the Occupational Safety and Health Act (OSH Act), OSHA did not have the authority to require the 84 million Americans falling within the scope of the ETS to be vaccinated against COVID-19 or get tested for the disease on a weekly basis.
Rejecting OSHA’s argument that it had authority for its ETS because Congress had vested the Secretary of Labor, acting through OSHA, with “broad authority” to establish “standards for health and safety in the workplace,” the Court stated it expected “Congress to speak clearly when authorizing an agency to exercise powers of [such] vast economic and political significance”9 but that Congress had not done so in relation to the ETS. The Court said that, while COVID-19 is a hazard, it is not an occupational hazard in most workplaces and that “[p]ermitting OSHA to regulate the hazards of daily life – simply because most Americans have jobs and face those same risks while on the clock – would significantly expand OSHA’s regulatory authority without clear congressional authorization.” The Court called the mandate a “blunt instrument” and concluded that, although Congress indisputably has given OSHA the power to regulate occupational dangers by setting workplace safety standards, Congress did not give OSHA the power to set broad public health measures.10
The Court also found that OSHA’s mandate failed under both the major-question doctrine and the nondelegation doctrine.
The major-question doctrine is grounded on the principle that an executive agency only has that authority clearly granted to it by Congress.11 An agency’s action without such clear congressional authority constitutes an arbitrary use of executive power that improperly usurps Congress’ Article I authority as the branch of government vested with legislative power.12 The Court viewed OSHA’s vaccine mandate as “no ‘everyday exercise of federal power,’” but rather as a “work-around” to achieve what the Biden Administration could not accomplish through legislative action with Congress.13
The nondelegation doctrine is intended to preserve those legislative powers vested with Congress under Article I and acts as a check on Congress’ ability to delegate those powers “which are strictly and exclusively legislative.”14 The Court found that the Secretary of Labor, through OSHA, was not plainly authorized to issue the nationwide vaccination-or-test mandate to address a major question of national significance concerning public health.15
The Court’s decision does not mean that OSHA is without authority to regulate occupational hazards within the workplace related to COVID-19, however. The Court made clear that “[w]here the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are permissible.”16
On Jan. 26, 2022, OSHA effectively withdrew its vaccination-or-test mandate as an ETS but announced that it was not withdrawing the ETS as a proposed rule. This could mean that OSHA intends to proceed with its mandate through the promulgation of a safety and health standard under the typical notice and comment process.17 If OSHA does so, it will give Congress the final word under the Congressional Review Act,18 which provides Congress the power to disapprove or overturn an executive agency’s rule through a joint resolution.
Vaccine Mandates Fall Within Power of the States
Around the same time it was considering the challenges to the federal vaccine mandates discussed above, the Court also was reviewing a flurry of challenges to state and local government COVID-19 vaccine mandates and protective measures and even to the established American public health legal framework.
Key Public Health Precedent. The Supreme Court’s 1905 decision in Jacobson v. Commonwealth of Massachusetts19 has served as the cornerstone of the U.S. public health framework for over a century by recognizing the constitutionality of a state’s police power to regulate public health. In Jacobson, the Court affirmed the constitutionality of a state statute authorizing local health boards to require residents to be vaccinated against smallpox or pay a five-dollar fine. The Court explained that the authority to respond to a public health crisis must be “lodged somewhere” and that it is not unusual or unreasonable to vest it in governmental officials.
The Court emphasized the utilitarian aspect of rules protecting the many at the expense of the few and found that, if the choice is between two reasonable responses to a public crisis, it should be left to the political branches to decide. The Jacobson decision thus establishes a high level of deference courts are to give to state actions to address public health matters, and this standard has served as the foundation for judicial review of public health measures since it was decided more than 100 years ago.
Recently, however, some of the challenges to state and local COVID-19 regulation have questioned whether Jacobson continues to be good law. As shown below, it appears (at least for now) that the public health framework established by Jacobson remains intact.
Decisions Upholding Mandates. In Klaassen v. Trustees of Indiana University,20 eight students filed a federal lawsuit seeking to bar enforcement of Indiana University’s requirement that its faculty, staff, and students be vaccinated against COVID-19, unless exempt from the requirement for religious or medical reasons. The plaintiffs claimed the university’s rules violate the Due Process Clause of the 14th Amendment of the U.S. Constitution.
The Seventh Circuit Court of Appeals rejected these claims, finding the case “is easier than Jacobson.” The Seventh Circuit recognized that “vaccination requirements, like other public-health measures, have been common in this nation” and that given Jacobson “which holds that a state may require all members of the public to be vaccinated against smallpox, there can’t be a constitutional problem with vaccination against SARS-CoV-2.” The Supreme Court summarily denied the plaintiffs’ emergency application to enjoin enforcement of the university’s vaccination requirements.
In Maniscalco v. New York City Department of Education,21 four New York City public-school employees filed a federal class action seeking to bar enforcement of New York City’s requirement that its public-school teachers provide proof of COVID-19 vaccination or face suspension without pay. The plaintiffs claimed different reasons for not wanting to get the vaccine, including concern about its long-term effects, and argued that the requirement violates their substantive due process and equal protection rights under the 14th Amendment. Both the Second Circuit Court of Appeals and the Supreme Court denied emergency applications by the plaintiffs to enjoin enforcement of the New York vaccination requirement.
In Valdez v. Grisham,22 a New Mexico nurse was the named plaintiff in a class action seeking to bar enforcement of a New Mexico public health order requiring all hospital workers (and all vaccine-eligible people seeking to attend the New Mexico State Fair) be vaccinated for COVID-19. The plaintiffs claimed that the order violated the Federal Food, Drug, and Cosmetic Act, as well as their rights under the 14th Amendment; article 1, section 10 of the U.S. Constitution; and the New Mexico Constitution. The Tenth Circuit Court of Appeals and the Supreme Court denied emergency applications by the plaintiff to enjoin enforcement of the New Mexico order.
Religious Freedom Arguments Threaten Vaccine Mandates. But the dissents in two recent decisions by the Supreme Court in cases involving state vaccine mandates suggest that religious freedom concerns could shape future rulings on U.S. public health measures, including COVID-19 vaccination programs.
In Does 1-6 v. Mills,23 healthcare workers challenged Maine’s requirement that various types of employees be vaccinated against a number of infectious diseases, including COVID-19. The plaintiffs claimed that Maine’s vaccine mandate constituted impermissible religious discrimination in violation of the Free Exercise Clause of the First Amendment of the U.S. Constitution because it allows for medical exemptions but does not allow for religious exemptions. The U.S. District Court for the District of Maine denied an injunction pending appeal, and the First Circuit Court of Appeals affirmed the district court. The First Circuit court denied the plaintiffs’ request for an injunction against Maine’s vaccine requirement, stating “[f]ew interests are more compelling than protecting public health against a deadly virus.”24
The plaintiffs’ emergency petition to the Supreme Court to try to stop Maine’s law also was denied. But Justice Gorsuch issued a lengthy dissent, which was joined by Justice Thomas and Justice Alito, focusing on the fact that Maine’s law does not contain a religious exemption but allows a medical exemption. He stated that “medical exemptions and religious exemptions are on comparable footing when it comes to the State’s asserted interests.” He noted that “[m]any other States have made do with a religious exemption in comparable vaccine mandates” and “Maine’s decision to deny a religious exemption in these circumstances doesn’t just fail the least restrictive means test, it borders on the irrational.”25
Two challenges to New York’s mandate that healthcare workers receive a COVID-19 vaccine received similar analysis at the Supreme Court. In We the Patriots USA Inc. v. Hochul,26 a group of nurses, physicians, and other healthcare workers filed suit to enjoin New York’s vaccine mandate because it lacks a religious exemption and thus, they argued, violated their religious, privacy, and “medical freedom” rights under the First, Fourth, Fifth and 14th Amendments. In Dr. A. v. Hochul,27 healthcare workers, including physicians, medical residents, and nurses, filed a lawsuit objecting to New York’s vaccine mandate as discriminatory because it does not allow for religious exemptions.
The Second Circuit Court of Appeals considered appeals in these cases together and rejected them, finding New York’s vaccine requirement “was a reasonable exercise of the State’s power to exact rules to protect public health.”28 The plaintiffs then filed emergency applications with the Supreme Court to try to prevent enforcement of New York’s mandate. On Dec. 13, 2021, the Court denied the plaintiffs’ applications. However, Justice Gorsuch again dissented, again along with Justice Alito and Justice Thomas. Justice Gorsuch’s lengthy dissent, which has been described as “scathing” by some commentators, echoes but amplifies his dissent in Does 1-6, stating “[t]oday, we do not just fail the applicants. We fail ourselves” because the Court “stands silent as majorities invade the constitutional [religious] rights of the unpopular and unorthodox.”29
Federal, state, and local COVID-19 vaccination mandates have become key components in public health planning to combat the COVID-19 pandemic. The decisions to implement these mandates have not been without controversy, however. In addition to their political impact, vaccination mandates raise significant constitutional issues regarding which governmental authority, whether federal, state, or local, should have such powers.
So far, the courts, including the U.S. Supreme Court, have upheld vaccination mandates issued by federal agencies as long as those mandates are based on a clear expression of congressional authority. In determining whether Congress has authorized a federal agency to issue a vaccination mandate, the Court has made clear it will not strain to find congressional authority within an enabling statute because “Congress does not usually ‘hide elephants in mouseholes.’”30 Requiring federal agencies to have clear congressional authority when issuing regulations places an important constitutional check on executive agency action to try to side-step the robust, and sometimes difficult, democratic process required to enact legislation.
Historically, Congress has left the regulation of public health matters to state and local governments. The courts, including the U.S. Supreme Court, continue to recognize the precedent established by Jacobson that the regulation of public health matters, including mandating vaccinations, is a police power of the states and their political subdivisions.
The question of who should decide whether people should be subject to COVID-19 vaccination mandates – the federal government or the states – is a political one that requires a balancing of public health interests against public opinion and concepts of individual liberty. The question for courts when reviewing these mandates is not whether they are the best public health measures to combat the COVID-19 pandemic, or if they are popular, but rather whether the mandates are a proper exercise of government authority over public health matters within the framework of the U.S. Constitution. It appears that the federal courts, at least for now, are unwilling to upset the 100-plus years of public health legal precedent establishing the power of the states to protect the public health of their constituents.
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What do you do in your free time?
In day-to-day free time, I listen to podcasts (and have an embarrassingly long backlog that I’m constantly working through), read, and am not above binge watching TV. When I can find a little more time away, I love to travel and am hoping to be able to do more of that in the coming year.
Erica N. Reib, O’Neil, Cannon, Hollman, DeJong & Laing S.C., Milwaukee
How has your career surprised you?
My career has surprised me in almost every way. I went to law school right after college. My parents were teachers. I had no lawyers in my extended family. Other than high school and college jobs at a restaurant, doing yardwork, and coaching youth sports and activities (and driving the Puppet Mobile for a municipal park system in Minnesota, but that is a long and different story), I had no professional work experience before my 2L summer law clerkships and had little-to-no business education before I started practicing law.
I knew the practice of law would require hard work and diligence, but I had little idea how my legal career would develop. Fortunately, I had supportive (and patient) friends, family, colleagues, and mentors who helped me at the start of what is now a 30-plus-years’ legal career. While I am not surprised I have enjoyed the practice of law, I am surprised how my legal career developed and has changed over the years. For that reason, I try to help other young lawyers starting their careers in the same way others helped me all those years ago.
Grant C. Killoran, O’Neil, Cannon, Hollman, DeJong & Laing S.C., Milwaukee
What is on your bucket list?
The first thing that I think of when asked about a “bucket list” is one of the more humorous scenes in the 1963 movie It’s A Mad, Mad, Mad, Mad World and Jimmy Durante laying on his back after a car accident trying to muster his last words to tell everyone that he had buried “$350Gs” under the “big W” and then literally kicking the bucket down the hill upon his last breath.
Like Jimmy Durante, I may never get to the “big W” but I would like to have a bucket to kick – an empty one, I hope. So before the bucket is placed before my feet, I would like to have an opportunity to publish a self-help book, spend time with my beautiful wife visiting all 50 states (32 down/18 left), as well as visiting Italy, Japan, and New Zealand, and, more important, continue to see my three beautiful adult daughters make a positive difference for the people they encounter in their lives. Oh yes, one more, to get that elusive hole-in-one!
Joseph E. Gumina, O’Neil, Cannon, Hollman, DeJong & Laing S.C., Milwaukee
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1 Sara Berg, What Doctors Wish Patients Knew about COVID-19 Herd Immunity, Am. Med. Ass’n (Aug. 27, 2021), www.ama-assn.org/delivering-care/public-health/what-doctors-wish-patients-knew-about-covid-19-herd-immunity.
2 See Mayo Clinic, U.S. COVID-19 Vaccine Tracker: See Your State’s Progress,
www.mayoclinic.org/coronavirus-covid-19/vaccine-tracker (last visited Feb. 10, 2022).
3 Biden v. Missouri, 142 S. Ct. 647 (2022)(per curiam).
4 Id. at 650 (quoting 42 U.S.C. § 1302(a)).
5 Id. at 650-55.
6 Id. at 658 (Thomas, J., dissenting).
7 See 86 Fed. Reg. 61,402, 61,408 (Nov. 5, 2021) (to be codified at 29 C.F.R. pts. 1910, 1915, 1917, 1918, 1926, and 1928).
8 National Fed’n of Indep. Bus. v. Department of Lab., 142 S. Ct. 661 (2022).
9 Id. at 3 (quotingAlabama Ass’n of Realtors v. Department of Health & Human Servs., 141 S. Ct. 2485, 2489 (2021)).
10 Id. at 665.
11 See, e.g., Utility Air. Regul. Grp. v. EPA, 573 U.S. 302, 385 (2014); Alabama Ass’n of Realtors, 141 S. Ct. at 2489.
12 United States Telecom Ass’n v. FCC, 855 F. 3d 381, 417 (D.C. Cir. 2017) (The major question doctrine is “a vital check on expansive and aggressive assertions of executive authority.”).
13 National Fed’n of Indep. Bus., 142 S. Ct. at 665 (quoting In re MCP No. 165, 20 F. 4th 264, 272 (6th Cir. 2021)). In reference to whether there was legislative support for OSHA’s mandate, the Court found that the “most noteworthy action concerning the vaccine mandate by either House of Congress has been a majority vote of the Senate disapproving the regulation on December 8, 2021.” Id. at 666 (citing S.J. Res. 29, 117th Cong., 1st Sess. (2021)). On Sept. 9, 2021, White House Chief of Staff Ron Klain retweeted an MSNBC tweet that stated, “OSHA doing the vaxx mandate as an emergency workplace safety rule is the ultimate work around for the Federal govt to require vaccinations.” See BST Holdings L.L.C. v. OSHA, 17 F. 4th 604, 619 n.13 (5th Cir. 2021).
14 Wayman v. Southard, 23 U.S. 1, 42-43 (1825).
15 National Fed’n of Indep. Bus., 142 S. Ct. at 666-70 (Gorsuch, J., concurring).
16 Id. at 665-66.
17 5 U.S.C. §§ 551-559.
18 5 U.S.C. §§ 801-808.
19 Jacobson v. Commonwealth of Mass., 197 U.S. 11 (1905).
20 Klaassen v. Trustees of Ind. Univ., 7 F. 4th 592 (7th Cir. 2021).
21 Maniscalco v. New York City Dep’t of Educ., No. 21-cv-5055 (BMC), 2021 WL 4344267 (E.D.N.Y. Sept. 23, 2021), aff’d, No. 21-2343, 2021 WL 4814767 (2d Cir. Oct. 15, 2021) (unpublished).
22 Valdez v. Grisham, No. 21-cv-783 MV/JHR, 2021 WL 4145746 (D.N.M. Sept. 13, 2021).
23 Does 1-6 v. Mills, No. 1:21-cv-00242-JDL, 2021 WL 4783626 (D. Me. Oct. 13, 2021).
24 Does 1-6 v. Mills, 16 F. 4th 20, 32 (1st Cir. 2021).
25 Does 1-6 v. Mills, 142 S. Ct. 17, 22 (2021) (Gorsuch, J., dissenting).
26 We the Patriots USA Inc. v. Hochul, No. 1:21-cv-04954-WFK (E.D.N.Y Sept. 2, 2021).
27 Dr. A v. Hochul, No. 1:21-cv-1009, 2021 WL 4734404 (N.D.N.Y. Oct. 12, 2021).
28 We The Patriots USA Inc. v. Hochul, 17 F. 4th 266, 290 (2d Cir.), opinion clarified, 17 F. 4th 368 (2d Cir. 2021).
29 Dr. A v. Hochul, 142 S. Ct. 552, 557 (2021) (Gorsuch, J., dissenting).
30 National Fed’n of Indep. Bus., 142 S. Ct. at 666-70 (Gorsuch, J., concurring) (quoting Whitman v. American Trucking Ass’n Inc., 531 U.S. 457, 468 (2001).
» Cite this article: 95 Wis. Law. 12-17 (March 2022).