25 January 2022 by , and Employment Law Alert

A grand slam for ‘NO-VAC’: A brief discussion of the United States Supreme Court’s decision to block President Biden’s vaccine mandate for medium to large scale businesses

On 9 September 2021, President Joe Biden announced plans that would ‘require more Americans to be vaccinated’ in response to the rising number of COVID-19 cases in the US and, of course, the subsequent death toll. President Biden further announced that an emergency directive, i.e., ‘vaccine mandate’’, would be issued requiring employers employing at least 100 employees to indicate that their workforces have been fully vaccinated, or provide a negative COVID-19 test at least once per week. This proposed vaccine mandate would affect some 100 million workers in America.

On 5 November 2021, the proposed vaccine mandate was issued through the Occupational Safety and Health Administration Act of 1970 (‘’OSHA’’), which imposed significant fines on those businesses that refused to comply. Various parties challenged this decision to implement the vaccine mandate. These numerous cases were eventually consolidated in the matters of National Federation of Independent Business et al vs Department of Labour, Occupational Safety and Health Administration (21A244) and Ohio et al vs Department of Labor, Occupational, Safety and Health Administration et al (21A247), which then found its way to the US Supreme Court.

In the vaccine mandate cases, Missouri v. Biden and National Federation of Independent Business v OSHA, the Supreme Court (the Court) rendered a split decision. Missouri v. Biden in essence allowed the Biden Administration to begin enforcing a rule that requires entities receiving medical care or medical aid funding to insist that their employees be vaccinated. However, National Federation of Independent Business v. OSHA on the other hand, essentially prevents the Biden Administration from enforcing a rule that would require businesses employing a hundred or more workers to insist that their employees who work in settings conducive to the spread of COVID-19, either be vaccinated and/or wear masks and undergo regular coronavirus testing. On a closer analysis, it is arguable that the Court, strictly speaking, did not render a decision on the validity of either rule. Instead the decisions basically determined whether the rules in question could be implemented while their legality was further litigated. The opinions of the Court are, however, such that the legality questions seem to have been answered. Mandates for health care workers are permissible, while mandates for ordinary employees of large businesses are not permissible.

The Court’s decisions carry enormous significance for the federal response to COVID-19. The Court’s ruling will mean that nationwide workplace protection now can be implemented only in health care facilities, where the justification is patient safety, not worker protection. As Justices Breyer, Sotomayor, and Kagan wrote in their dissent in the OSHA case, the majority’s decision “stymies the Federal Government’s ability to counter unparalleled” threats.

The Biden Administration could propose more limited COVID-19 workplace standards, for example, applying only to workplaces with especially high risks of SARS-CoV-2 transmission (such as work in medical facilities, work being carried out in confined spaces, assembly lines or cruise ships), but it is arguable that the Court’s ruling gives OSHA fairly limited scope for future action.

The topic of vaccine mandates or mandatory workplace vaccination policies (as they are referred to in South Africa) continues to polarise opinions. In South Africa, the Department of Employment and Labour has published Directives which provide the building blocks for mandatory workplace vaccinations. However, these Directives expressly state that employees can object to mandatory vaccinations on either constitutional or medical grounds.

There are pending constitutional challenges to mandatory workplace vaccinations in the Constitutional Court and the Free State High Court. In conclusion: our Courts will no doubt be monitoring global jurisprudence and it remains to be seen whether mandatory workplace vaccinations in South Africa will ultimately be declared lawful.

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