On January 13, 2022, a divided United States Supreme Court issued two landmark opinions on vaccination mandates, which may foreshadow the fate of the Department of Health and Human Services, Administration for Children and Families, Office of Head Start’s interim final rule with comment (the “Head Start IFC”). The Head Start IFC – which requires masking for all individuals two years of age and older as well as vaccination for Head Start staff, contractors, and volunteers working in classrooms or directly with children – has been subject to legal challenges in multiple cases throughout the United States and is currently blocked in 25 states as a result of federal district courts’ rulings in Louisiana and Texas.
In National Federation of Independent Business v. Department of Labor (No. 21A244), the Supreme Court overturned the Court of Appeals for the Sixth Circuit and blocked an Occupational Safety & Health Administration (“OSHA”) Emergency Temporary Standard that required employers with 100 or more employees to ensure that their employees were either fully vaccinated against COVID-19 or subject to weekly testing. And, in Biden v. Missouri (No. 21A240), the Supreme Court declined to stay a Centers for Medicare & Medicaid Services’ (“CMS”) interim final rule, which required covered health care facilities and providers to ensure that their staff was fully vaccinated against COVID-19 in order to receive Medicare and Medicaid funding. Although the Supreme Court did not address the Head Start IFC in either of these vaccine mandates cases, its opinions may nonetheless foretell how federal courts will handle legal challenges to the Head Start IFC moving forward.
Four Key Takeaways from the Supreme Court’s Opinions on the OSHA and CMS Vaccine Mandates
The role of OSHA vs. HHS in issuing vaccine mandates
In the OSHA mandate case, the Supreme Court noted that COVID-19 is a hazard of “daily life,” so it concluded that OSHA did not have the regulatory authority to enact a rule targeting a danger that existed beyond the workplace. However, as the CMS vaccine mandate and the Head Start IFC were both promulgated by divisions of the U.S. Department of Health & Human Services (“HHS,” an agency charged with enhancing “the health and well-being of all Americans”), the Head Start IFC fits neatly within the stated requirements of the Head Start program. The Head Start Program Performance Standards (“HSPPS”) specifically address “staff health and wellness” and requires programs “…to ensure staff do not, because of communicable diseases, pose a significant risk to the health or safety of others in the program that cannot be eliminated or reduced by reasonable accommodation, in accordance with the Americans with Disabilities Act and section 504 of the Rehabilitation Act.”
The Supreme Court is looking for explicit Congressional authority for each mandate
In the CMS case, the Supreme Court held that CMS had the requisite congressional authority because “ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm.” This logic would arguably apply to the Head Start IFC as Head Start has historically required participating programs to engage in comprehensive practices relating to child safety, staff health and wellness, and hygiene. The vaccination and masking requirements of the Head Start IFC are consistent with these practices.
For example, vaccination requirements for infectious diseases are already a mainstay in most educational and licensed childcare settings. In this vein, the HSPPS include a longstanding requirement that grantees comply with state immunization regulations prior to enrolling children. These requirements are, of course, designed to keep kids and staff safe, a very similar concept to that employed by the Supreme Court in discussing the safety of patients and staff in health care facilities.
Vaccine mandates can be a condition of participation in federal programs
The Supreme Court concluded that it was reasonable for CMS to require compliance with its vaccine mandate as a condition of participation in the Medicare and Medicaid programs as health care facilities “have always been obligated to satisfy a host of conditions that address the safe and effective provision” of health care services. This analysis bodes well for the condition of participation requirement in the Head Start IFC as Head Start programs are already obligated to adhere to a litany of conditions and guidelines in order to maintain eligibility for the receipt of Head Start funding.
Pay attention to the dissent
The dissent in Biden v. Missouri argued that vaccine mandates “fall squarely within a state’s police power,” and, “[i]f 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.” As the dissent in Biden v. Missouri was part of the majority who upheld blocking the OSHA vaccine mandate, courts will take special notice of the dissent’s opinion, particularly to the extent it argues explicit congressional authority for HHS to impose a nationwide vaccination mandate (on health care facilities or Head Start programs) is lacking.
However, the dissent fails to recognize that federal grant programs contain conditions of participation and do not pre-empt state laws. Instead, federal grant programs provide conditions which grantees must abide by in order to receive federal funds. If a grantee does not want to comply with such conditions, then the grantee can opt to not participate in the grant program (and decline program funding). The federal district courts who blocked the Head Start IFC seemingly failed to consider this important facet of federal grant programs.
How should Head Start programs proceed in light of these Supreme Court decisions on vaccine mandates?
As challenges to the Head Start IFC have yet to reach the Supreme Court – and there is certainly no guarantee that they will do so – the legal status of the Head Start IFC remains in flux. At this time, implementation of the Head Start IFC is blocked in 25 states as a result of federal district court rulings in Louisiana and Texas, while Head Start programs elsewhere face a compliance deadline of January 31, 2022.
All Head Start programs are advised to stay abreast of judicial decisions on vaccine mandates and consult legal counsel for questions relating to their compliance obligations in this fluid legal landscape.