Federal COVID Vaccine Mandate Struck Down, but Still Applies to Healthcare Workers in New Jersey

The question of mandatory vaccinations for COVID-19 has proven to be quite controversial over the past year. In late 2021, the White House directed the Occupational Safety and Health Administration (OSHA) to develop a rule requiring all employers with one hundred or more employees to require vaccination against COVID. Lawsuits soon followed challenging OSHA’s authority to do this. The U.S. Supreme Court recently affirmed several lower court orders staying this rule. At the same time, it upheld a rule from the Department of Health and Human Services (HHS) requiring many healthcare workers to get vaccinated. New Jersey healthcare workers are also subject to a series of executive orders from the governor regarding vaccination.

Vaccination mandates are not a new concept in the U.S. The Supreme Court affirmed state laws requiring vaccination against smallpox in 1905 in Jacobson v. Massachusetts. Throughout the COVID-19 pandemic, governments throughout the U.S. have largely left it to employers to decide whether to require their employers to get vaccinated, or they have left the decision to individuals.

Many states require healthcare workers to get vaccinated against COVID. Prior to the pandemic, New Jersey enacted a law requiring employees of hospitals, nursing homes, and home health care agencies to get an annual flu vaccine. The state legislature has not passed any laws requiring COVID vaccinations, but the governor has taken action. In August 2021, Governor Phil Murphy issued the first of several executive orders requiring employees of certain healthcare facilities to get the COVID vaccine. He issued a new order on January 19, 2022, expanding the scope of the prior orders.

The White House announced the first federal COVID vaccination mandate in September 2021. Two months later, OSHA published an interim final rule that would require employers with one hundred or more employees to create policies that give employees a choice between:
– Getting vaccinated against COVID-19; or
– Undergoing regular testing and wearing a face covering while at work.
“Mandate” might be too strong a word for the rule, since it gives employees an option besides vaccination.

Also in November, HHS issued an interim final rule establishing a vaccination mandate for employees of healthcare facilities certified by the Medicare and Medicaid programs. Covered employers must enforce the vaccination mandate, subject to medical or religious exemptions, in order to continue to receive Medicare and Medicaid funding.

The Supreme Court ruled on challenges to both federal mandates on January 13, 2022. In Nat’l Fed. of Indep. Bus. v. Dep. of Labor, it ruled that the OSHA rule exceeded the agency’s authority under the Occupational Safety and Health Act (OSH Act). While OSHA has the authority to address workplace dangers, the majority ruled that this does not include broad public health mandates. Three justices dissented, stating that COVID-19 may be considered a “new hazard” covered by the OSH Act.

In Biden v. Missouri, the court upheld the HHS rule regarding healthcare workers. It found that the rule was within the statutory authority granted by the Social Security Act. It further found that the rule serves a legitimate public health purpose by addressing the public’s “fear of exposure” to the coronavirus in healthcare facilities.

The employment attorneys at the Resnick Law Group advocate for the rights of workers in New Jersey and New York, representing them in claims for a wide range of unlawful employment practices. To schedule a confidential consultation to see how we can help you with your case, please contact us today online, at 973-781-1204, or at 646-867-7997.

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