In decisions handed down just yesterday, the U.S. Supreme Court nixed OSHA’s vaccine mandate for employers with 100 or more employees but allowed a vaccine mandate for health care employers who receive Medicare and Medicaid funding.  The Court had heard oral argument in the two cases only last Friday, January 7th.

The difference in the two decisions was Chief Justice Roberts and Justice Kavanaugh, both of whom voted to allow the health care mandate but not the mandate for large employers.  The vote in the health care mandate case was 5-4 and was 6-3 in the large employer case.

The health care employer case resulted from an interim final rule issued November 5th by the Secretary of Health and Human Services, and five justices had no trouble finding that the rule was within his authority and that it was not arbitrary or capricious.

The large employer case resulted from an emergency temporary standard issued by OSHA on November 5th.  Six justices, clearly troubled by the breadth and unprecedented nature of the rule, found that the law did not empower OSHA to set broad public health standards, which the Court found the rule essentially was, only occupational or workplace safety standards.

Technically, the two decisions do not end the cases in which they were handed down, but for all practical purposes they do  The decisions do not directly affect a third Biden administration vaccine mandate requirement, for employers who contract with the federal government.

The health care worker vaccine mandate rule conflicts with a recent Texas law that forbids vaccine mandates; the courts will need to sort that out in the days ahead.