US Supreme Court Blocks OSHA’s ETS, Upholds CMS Vaccine Mandate on Health Care Facilities

On Thursday, January 13, 2021, the Supreme Court of the United States (SCOTUS) ruled on the two cases they heard oral arguments on just last Friday, January 7.

• SCOTUS ruled 6-3 to BLOCK the Occupational Safety & Health Administration (OSHA) emergency temporary standard (ETS) issued in November 2021.
  • This rule went into effect Monday, January 10, requiring all employers nationwide with 100+ employees to develop formal policies mandating vaccination (or if they wish to offer an alternative, require weekly testing of employees not fully vaccinated beginning February 9).
  • “Although 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. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”
  • “That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face. OSHA’s indiscriminate approach fails to account for this crucial distinction—between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard.” 29 U. S. C. §655(b) (emphasis added).”
  • “OSHA’s COVID–19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61402, is stayed pending disposition of the applicants’ petitions for review in the United States Court of Appeals for the Sixth Circuit.”
  • This means the ETS is blocked from being enforced until the Sixth Circuit reaches a decision on the merits, but SCOTUS held that the states and other litigants are likely to prevail, so no matter what decision the Sixth Circuit reaches, it would likely be appealed to SCOTUS again and we now know how the majority of Justices would rule on the matter. This is effectively the death knell of the federal OSHA ETS.
• SCOTUS ruled 5-4 to UPHOLD the Centers for Medicare and Medicaid Services (CMS) vaccine mandate issued in November 2021.
  • The mandate had been blocked in about half the states, but CMS may now enforce the rule nationwide.
  • “Congress has authorized the Secretary to impose conditions on the receipt of Medicaid and Medicare funds that “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.” 42 U. S. C. §1395x(e)(9).* COVID–19 is a highly contagious, dangerous, and—especially for Medicare and Medicaid patients—deadly disease. The Secretary of Health and Human Services determined that a COVID–19 vaccine mandate will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients… He accordingly concluded that a vaccine mandate is “necessary to promote and protect patient health and safety” in the face of the ongoing pandemic.”
  • Therefore, “in order to receive Medicare and Medicaid funding, participating facilities must ensure that their staff—unless exempt for medical or religious reasons—are vaccinated against COVID–19” while the Fifth and Eighth Circuit Courts of Appeals decide on the merits of their respective cases.

While the OSHA ETS is now blocked nationwide, that does not necessarily mean employers are unable to impose a vaccine mandate.  In fact, SCOTUS has largely turned away lawsuits against employers with a vaccine mandate.

This also does not change the nature of any state OSHA mandates to ensure employees are vaccinated (or test weekly).

As a reminder, the federal OSHA ETS required designating an official responsible to comply with the ETS, a written policy addressing COVID-19 workplace procedures, paid time off to get vaccinated and recover from side effects, and other requirements we previously covered here.  Employers now get to decide whether they wish to implement any or all of these, but should always follow CDC, state and local workplace guidance.

Health care employers subject to the CMS vaccine mandate may recall that CMS revised implementation deadlines to January 27, 2022, for the first phase and February 28, 2022, for full vaccination.  We do not have an indication at this time of whether they will further delay those dates as a result of the temporary stay in half the states, so it may be prudent to act swiftly to comply by the deadlines above.  Update: January 14 CMS guidance indicates providers in the states that had the injunction must comply with phase one by Monday, February 14, and phase 2 by Tuesday, March 15.  However, Texas remains exempt.

Written by: KC Rippstein

IMA will continue to monitor regulator guidance and offer meaningful, practical, timely information.

This material should not be considered as a substitute for legal, tax and/or actuarial advice. Contact the appropriate professional counsel for such matters. These materials are not exhaustive and are subject to possible changes in applicable laws, rules, and regulations and their interpretations.