Supreme Court Rules on OSHA Vaccinate or Test ETS & CMS Vaccination Rule

On January 13, the Supreme Court issued two opinions related to national vaccination mandates: staying enforcement of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) and staying the preliminary injunctions which were issued on the Center for Medicare and Medicaid Services’ (CMS) rule requiring vaccination for employees of facilities who receive Medicare and Medicaid funding.  While not the final word on these requirements, these rulings demonstrate the likely outcome of these legal challenges.  The result of these rulings is that many employers will be left subject to myriad state and local requirements related to vaccination, testing, and masking. A summary of the relevant decisions is below.

OSHA ETS Stayed

As employers may recall, the ETS requires employers with 100 or more employees to implement policies either mandating vaccination against COVID-19 or requiring employees to wear face coverings and engage in COVID-19 testing. The ETS was previously challenged in courts throughout the country and the Fifth Circuit stayed the ETS. Following this decision, all legal challenges to the ETS were consolidated and transferred to the Sixth Circuit via lottery system and a three-judge panel of the Sixth Circuit Court of Appeals dissolved the stay, finding that OSHA has “the authority to regulate infectious diseases and viruses” and “a wide discretion to form and implement the best possible solution to ensure the health and safety of all workers.” In its January 13th opinion, the Supreme Court reversed that decision.  

The Supreme Court’s decision was based on the rationale that the Secretary of Labor (“the Secretary”) lacked the authority to impose this kind of broad mandate, noting that the Occupational Safety and Health Act (“the Act”) empowers the Secretary to set workplace safety standards, not broad public health measures.  The Court categorized COVID-19 as “that kind of universal risk [which] is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases”.  The Court further stated that “permitting OSHA to regulate the hazards of daily life” significantly broadens OSHA’s regulatory authority without explicit congressional authorization.

However, the Court also noted that this opinion does not prevent OSHA from issuing “targeted regulations” where COVID-19 poses “a special danger because of the particular features of an employee’s job or workplace.” The Court provided two examples where targeted regulations from OSHA would be permissible: jobs where employees are working with the COVID–19 virus and jobs where employees work in particularly crowded or cramped environments.

OSHA has published a statement from the Secretary in response to this opinion. The statement disagrees with the Court’s opinion stating that “OSHA promulgated the ETS under clear authority established by Congress to protect workers facing grave danger in the workplace, and COVID is without doubt such a danger.” The statement urges all employers to require their employees to get vaccinated or tested weekly and asserts that regardless of the outcome of these proceedings “OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the Covid-19 National Emphasis Program and General Duty Clause.”

CMS Rule Can Move Forward Pending Litigation

Unlike the Court’s opinion on the ETS covering large employers, the Court found that the CMS rule, which requires facilities who receive Medicare and Medicaid funding to ensure their covered staff is vaccinated against COVID-19 absent a reasonable accommodation, fell within the authority Congress conferred upon the Secretary of Health and Human Services. The Court based this finding on the fact that healthcare facilities receiving Medicare and Medicaid funding have always been required to satisfy a host of conditions that address “the safe and effective provision of healthcare.” The Court also did not find this rule to be arbitrary and capricious.

As this rule is now in effect, employers should prepare to comply and review the relevant compliance deadlines. As an overview, all facilities covered by this rule must, by January 27, 2022, require that all covered staff receive their first dose of the COVID-19 vaccine, except those with a pending exemption request and those whose vaccination was temporarily delayed per CDC recommendations, and enact policies and procedures to comply with this rule. However, in a memorandum published by CMS on December 28, 2021, CMS stated that it will exercise discretion in enforcing that deadline. If a facility can show that more than 80% of its staff is vaccinated by January 27th and that they have a plan to achieve 100% vaccination within 60 days, it will be exempted from enforcement actions.

Further, CMS requires that all covered staff be fully vaccinated by February 28, 2022, except those with an exemption or a temporary delay in receiving the vaccination. However, they provide for some wiggle room again by allowing exemptions from enforcement actions to facilities with more than 90% of their staff vaccinated and a plan to achieve a 100% staff vaccination rate within 30 days.  These CMS requirements also overlap with many state law requirements for health care; for example, the New York State vaccination mandate for health care workers, which now also mandates booster doses for such workers.

Takeaways

As already noted, covered healthcare employers should prepare to comply with the CMS rule and its deadlines. Employers who were subject to OSHA’s ETS should still be mindful of other state and local obligations, such as the NYC workplace mandate, and may want to consider whether to implement a vaccination or testing requirement outside of any statutory obligation to do so.  Such a decision requires the careful examination of a number of factors, including the employer’s ability to assess reasonable accommodations, any bargaining obligations an employer with a unionized workforce may have, as well as the overlay of applicable law.  Employers should consult with counsel as they move forward with implementing their response to COVID-19.  

Additionally, neither of these opinions address the vaccination mandate governing federal contractors. On December 7, 2021, a Georgia federal judge enjoined that mandate from going into effect on a national level and on December 20, 2021, the Eleventh Circuit refused to stay that injunction as the federal government failed to demonstrate irreparable harm. The Eleventh Circuit has set an expedited schedule for briefing on the merits of the appeal and the Firm will keep clients updated on those proceedings. Employers with questions about these opinions or their obligations resulting from these opinions, should contact Caroline Secola at csecola@fglawllc.com, or any attorney at the Firm.

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