Supreme Court Blocks OSHA’s Emergency Temporary Standard, Allows CMS Mandate to Move Forward

On January 13, 2022, the United States Supreme Court handed down its decisions on the Occupational Safety and Health Administration’s (“OSHA”) Emergency Temporary Standard (“ETS”) and the Centers for Medicare and Medicaid Services’ (“CMS”) “Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule” (“CMS Mandate”).  The Supreme Court has stayed the enforcement of OSHA’s ETS vaccine-or-test mandate that would otherwise apply to all private employers with at least 100 employees in all industry sectors, but for the time being, it has allowed the CMS Mandate covering millions of healthcare workers to move forward.

Supreme Court Blocks OSHA’s ETS

The Supreme Court stayed the ETS while lower courts considered the challenges to the rule on the merits.  The ETS would have required approximately 84 million Americans to become fully vaccinated against COVID-19 or undergo weekly testing at their own expense. In staying the ETS, the Court noted that “[t]his is no ‘everyday exercise of federal power’”; but rather that “[i]t is instead a significant encroachment into the lives—and health—of a vast number of employees.” While openly acknowledging that “Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly.”  The Court noted that OSHA has never before imposed such a “broad public health regulation of this kind," and that, indeed, neither has Congress to date. The Court characterized the ETS as “blunt instrument” that “draws no distinctions based on industry or risk of exposure to COVID-19.”

OSHA’s ETS was set to require employers with 100 or more employees to ensure that most employees be either fully-vaccinated or submit to weekly testing by February 9, 2022, and imposed additional recordkeeping and masking requirements that had already gone into effect on January 10, 2022. 

Supreme Court Allows CMS Mandate to Move Forward

In a separate case, a different majority of the Supreme Court stayed the preliminary injunctions issued by the United States District Courts for the Eastern District of Missouri and Western District of Louisiana that stopped the enforcement of the COVID-19 vaccine mandate for workers employed by recipients of Medicaid and Medicare funding.  While noting that “challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it,” the Court identified a litany of instances in which CMS had routinely imposed requirements concerning the qualifications and duties of healthcare workers themselves.  Ultimately, the Court concluded that the CMS Mandate should be allowed to move forward because “such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.”

CMS’s Mandate requires staff of Medicare and Medicaid-participating health care facilities to become fully vaccinated against COVID-19.  For more information, see CMS Mandate Client Alert.

What the Supreme Court’s Rulings Mean for Employers

For employers that were set to be covered by OSHA’s ETS, such employers are no longer required to implement a vaccine-or-test policy and are no longer required to gather vaccination documentation.

Facilities covered by the CMS Mandate that have not already done so, should begin taking steps to come into compliance with the Mandate.  This means covered facilities should begin tracking and documenting the vaccination status of each staff member, including documenting the status of staff who have received booster doses as recommended by the Centers for Disease Control and Prevention (“CDC”).  Covered facilities must also document vaccine exemption requests and whether those exemption requests were granted or denied.  If vaccination must be delayed for a staff member based on CDC recommendations, the facility must track and document this as well. 

Covered facilities should also begin developing and implementing policies and procedures to ensure that all staff become fully vaccinated.

As of this writing, CMS has not issued guidance following the Supreme Court’s ruling.  However, as of December 28, 2021, CMS provided a modified timeline for compliance in the 25 states where the CMS mandate had not been stayed by lower courts.  According to this timeline, the deadline for staff to have received at least the first dose of a primary vaccination series or have requested a lawful exemption was January 27, 2022.  The deadline for staff to become fully-vaccinated, unless granted a lawful exemption, was set for February 28, 2022.  It is unclear how or whether the Supreme Court’s decision will affect this modified timeline.  Covered facilities should continue to monitor any guidance issued by CMS regarding how and when it intends to enforce its mandate.

If you have questions about what the Supreme Court’s decisions mean for your business or facility, please contact a Lewis Rice Labor and Employment attorney.