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Supreme Court Shuts Down OSHA Vaccine Or Test Mandate, But Upholds Medicare/Medicaid Rule

In a 6-3 decision issued yesterday, the U.S. Supreme Court blocked the emergency temporary standard (“ETS”) issued by the federal Occupational Safety and Health Administration (“OSHA”) that would have mandated that private employers with 100 or more employees require their employees to be vaccinated against COVID-19 or undergo weekly testing.

However, by a 5-4 vote, the Court simultaneously upheld a similar rule, issued by the Centers for Medicare and Medicaid Services (“CMS”), that requires mandatory COVID-19 vaccination policies for health care organizations that participate in the federal Medicare and Medicaid programs.

The ETS And The CMS Rule

For a summary of the OSHA ETS and the CMS Rule, see our previous E-Alerts here and here. In short, the ETS mandated that each private employer with 100 or more employees implement a COVID-19 policy requiring employees to be vaccinated against COVID-19 or submit to weekly COVID-19 testing and take other preventative measures in the workplace, such as masking and social distancing. OSHA had previously announced that it would begin issuing citations for non-compliance with the ETS after February 9, 2022.

The CMS Rule, which applies to health care organizations that receive Medicaid or Medicare reimbursements, requires that employees be vaccinated against COVID-19. Unlike the OSHA ETS, weekly testing is not permitted as an alternative to vaccination.

Supreme Court’s Rulings

The Court permanently stayed enforcement of the ETS, finding that the rule exceeded the authority delegated to OSHA by Congress. The majority decision characterized the ETS as “a blunt instrument” that “draws no distinctions based on industry or risk of exposure to COVID-19.”

Further, the Court concluded that the COVID-19 pandemic is not truly a workplace issue that is appropriate for broad regulatory action by OSHA. In this regard, the Court stated:

Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting 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. (Emphasis in original.)

The Court did, however, leave open the possibility that a more narrowly tailored version of the ETS could be valid, noting that “[w]here 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.”

In contrast, the Court upheld the CMS rule requiring employees of health care organizations receiving Medicare or Medicaid reimbursements to be vaccinated against COVID-19. The Court stated that Congress had authorized CMS to take steps to protect the health and safety of Medicare and Medicaid participants, and that guarding patients against COVID-19 transmission by employees of providers fell within this grant of authority. Further, the Court noted that employees of most health care organizations are already subject to mandatory vaccination against a variety of other diseases.

Implications For Employers

In light of the Supreme Court’s decision, employers need not comply with the OSHA ETS. However, the Court’s decision does not prevent employers from choosing to implement and enforce their own COVID-19 mandatory vaccination policies, so long as they comply with other state and federal laws, including by giving due consideration to requests for medical and religious exemptions.

As for the CMS rule, health care employers covered by that mandate should note that the compliance dates have been extended. Employees must now receive an initial COVID-19 vaccine dose by January 27, 2022, and be fully vaccinated by February 26, 2022.

Finally, the Biden Administration’s third COVID-19 employer mandate – requiring employees of federal contractors to be vaccinated against COVID-19 – has been blocked by a nationwide injunction, which will be reviewed by the 11th Circuit Court of Appeals in late February, and may eventually make its way to the Supreme Court.

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We will continue to provide updates as events warrant. In the meantime, please feel free to reach out if you have any questions about the Supreme Court’s decisions yesterday or your organization’s responsibilities and options with regard to COVID-19 vaccination policies.