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U.S. Supreme Court Speaks: OSHA Vax-or-Test Requirements Dead on Arrival, but CMS Vaccine Mandate Lives Nationwide

Submitted by Firm:
Crowe & Dunlevy
Firm Contacts:
Randall J. Snapp

By Michael W. Bowling, Maggie K. Martin and Karen S. Rieger

Today, Jan. 13, 2022, the U.S. Supreme Court issued its eagerly-awaited rulings on the federal government’s vaccine and testing mandates. The U.S. Supreme Court stayed the effect of the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS), which required large employers to implement vaccination or testing policies, effectively killing this temporary regulation. On the other hand, the court affirmed the right of the Centers for Medicare and Medicaid Services (CMS) to issue its COVID-19 vaccine mandate, meaning that the CMS mandate is now in effect nationwide.

OSHA ETS Further Stayed
Earlier this week, employers with over 100 employees scrambled to put policies in place to comply with OSHA’s vaccination/testing ETS for large employers in compliance with OSHA's Jan. 10 deadline for initial compliance. Employers who had not yet accomplished this can take a deep breath as they no longer need to. Employers who put the policy in place will now have to decide whether to withdraw it or leave it in place without any legal requirement to do so.

The Supreme Court has again stayed OSHA’s vaccination/testing ETS for large employers, and based on the wording of its decision which went well beyond putting the stay back in place, has all but put the nail in the coffin on the ETS. The court found that OSHA’s ETS was really an effort to regulate public health (something that OSHA is not empowered to do), not an effort to promote occupational health standards (the task given to OSHA by Congress).

In discussing why it put the stay back in place, the Supreme Court ruled that the parties challenging the ETS were likely to prevail on the merits of their challenges. The Supreme Court explained that the ETS was “no everyday exercise of federal power” and instead, is “a significant encroachment into the lives—and health—of a vast number of employees.” The Supreme Court reminded OSHA that the Occupational Health and Safety Act empowers the agency to set workplace safety standards, not broad public health measures. The court found that while COVID-19 is a risk that may occur in many workplaces, it not an occupational hazard in most, because it also spreads “at home, in schools, during sporting events, and everywhere else that people gather.” This makes it no different than other day-to-day dangers that society as a whole faces, like air pollution. The court held that to allow OSHA to regulate these sorts of hazards of daily life would significantly expand its authority beyond what was granted by Congress.

The court did indicate that some COVID-19 regulation by OSHA is appropriate—where OSHA can point to a special danger that the virus causes because of particular features of an employee’s job or workplace— but it would need to do so in a targeted fashion.

CMS Vaccine Mandate Lives
In a 5-4 decision, the court determined that it would allow the vaccine mandate for healthcare workers to move forward. The court determined that the Secretary of Health and Human Services (HHS) did not exceed his statutory authority in requiring Medicare and Medicaid eligible facilities to ensure that their employees be vaccinated against COVID-19.

The court’s majority opinion, delivered by Justices Roberts, Breyer, Sotomayor, Kavanaugh and Kagan, provided that mandating a vaccine is within the authorities that Congress has authorized the Secretary of HHS. The Secretary may issue such rules as he finds necessary to promote and protect patient health and safety, which includes a vaccine mandate. The court went on to further state that vaccine requirements are a common feature in the provision of healthcare in America and “[a]fter all, 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.” 

While these cases will continue to play out in the Appeals Courts for the Eighth and Fifth Circuits, it will be months before we have a resolution. In the meantime, healthcare facilities should pick back up their plans for continued compliance with the vaccine mandate. Back in December, CMS delayed implementation and enforcement of the mandate and issued a modified timeline. The new deadlines for implementation are as follows:

  • Phase I – Jan. 27, 2022               
  • Phase II – Feb. 28, 2022

Healthcare facilities will need to ensure that covered staff have received their first dose of the vaccine by the Phase I deadline and be fully vaccinated by the Phase II deadline. Facilities should also ensure that they have plans in place to address medical and religious exemptions requested by covered staff and that they have written plans in place to fully comply with the CMS mandate.

If you have questions regarding OSHA's ETS or the CMS mandate, please contact Michael W. BowlingKaren S. RiegerMaggie K. MartinMary P. Snyder, or another Crowe & Dunlevy attorney.