Unveiled in early November, the OSHA ETS required large employers, with 100+ employees, to implement a Vaccine-or-Test mandate in the workplace – all employees must be fully vaccinated against COVID-19 or undergo weekly COVID-19 testing and mask wearing. OSHA was going to begin enforcement starting January 10, 2022. Additional information can be found here.
CMS interim final rule
Also, in early November, DHHS, acting through the Centers for Medicare and Medicaid Services (CMS), published an interim final rule, mandating vaccination of employees among Medicare- and Medicaid-certified providers and suppliers as a condition to continue receiving Medicare and Medicaid funding. The deadlines for compliance are January 27, 2022 (employees receive first dose of vaccine) and February 28, 2022 (second dose). Additional information can be found here.
Both OSHA and CMS faced legal challenges immediately after publishing the ETS and the interim final rule, respectively.
- OSHA recently held victory in the legal battles when the S. Court of Appeals for the 6th Circuit reinstated the ETS on December 17, following lawsuits from several states, employers, trade associations, and religious groups. After the 6th Circuit overturned the legal blocks, 26 states filed for review with the United States Supreme Court. Oral arguments were held on January 7.
- Following multiple legal battles in lower courts in November, the CMS rule was blocked nationwide. However, in mid-December, decisions from two federal Circuit courts (the 5th and 8th Circuits) lifted the nationwide block but upheld the legal decisions blocking the CMS in 25 states. CMS thereafter announced it would begin enforcement of the COVID-19 vaccine mandates in the remaining 25 states, pending review by the U.S. Supreme Court. As with the ETS legal battle, the Supreme Court held oral arguments on January 7.
After hearing oral arguments on January 7, regarding both the ETS and the CMS rule, the Supreme Court issued its rulings on January 13, 2022.
OSHA ETS – blocked
With respect to OSHA’s ETS, the Court found that OSHA exceeded its authority in issuing the ETS, therefore upholding the legal challenges blocking the mandate.
In its decision, the Court stated that OSHA has the authority “to set workplace safety standards, [but] not broad public health measures,” and “[a]lthough COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most.” (Emphasis in original text). Further, the Court noted that people can contract COVID-19 “at home, in schools, during sporting events, and everywhere else that people gather” – not just in the workplace – making COVID-19 one of the many “day-to-day dangers.”
Therefore, “[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.” As such, OSHA cannot implement and enforce the ETS. The Court’s entire opinion can be found here.
CMS Rule – reinstated
In its decision regarding the CMS interim final rule, the Court took the opposite stance: the CMS rule does not exceed congressional authority and may be enforced.
The Supreme Court first considered the functions of DHHS, which included “ensur[ing] that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety.” To that end, the Department is authorized to enforce requirements necessary to protect those receiving services in institutions covered by Medicaid or Medicare. The Court agreed that the COVID–19 vaccine mandate “will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients,” and such a mandate is “‘necessary to promote and protect patient health and safety’ in the face of the ongoing pandemic.”
Thus, the Court held that the CMS rule may be enforced, and Medicare- and Medicaid-certified providers and suppliers must meet the compliance deadlines in order to continue receiving Medicare and Medicaid funding from DHHS. The Court’s entire opinion can be found here.
Given the Supreme Court’s decisions, healthcare employers who receive Medicare or Medicaid funding should ensure the policies regarding vaccine mandates and exemptions are being implemented to meet the CMS deadlines as outlined above.
As for non-healthcare employers, states and individual employers can make decisions regarding vaccine mandates, despite the Supreme Court’s ruling. In 2021, multiple states already took the initiative, introducing and passing legislation addressing vaccine mandates, testing requirements, and vaccination leave. Given the block on OSHA’s ETS, it is possible more states may seek to pass additional legislation to protect workers from COVID-19 in the workplace. Furthermore, employers may implement their own workplace regulations to protect employees. It is important for employers to be aware of state-level mandates and seek legal counsel before implementing additional workplace restrictions, mandates, or requirements.
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