Supreme Court Issues Rulings on COVID-19 Vaccination Mandates
Senior Compliance Attorney
On January 13, 2022, the United States Supreme Court issued rulings regarding recent COVID-19 vaccine mandates. Specifically one ruling addressed the Occupational Health and Safety Administration (OSHA)’s Emergency Temporary Standard (ETS) for employers with 100 or more employees and another ruling addressed the Centers for Medicare and Medicaid Services (CMS) Interim Final rule specifically for employees working for healthcare facilities that receive federal funding.
On November 4, 2021 OSHA issued an ETS for employers with 100 or more employees directing employers to implement a mandatory COVID-19 vaccination or mandatory COVID-19 vaccination with testing and masking for unvaccinated employees program. Immediately, the 5th Circuit Court of Appeals issued a temporary stay halting the enforcement of the ETS. On December 17, 2021 a three judge panel for the 6th Circuit reinstated the ETS and OSHA issued new enforcement deadlines.
Subsequently, the Supreme Court ruled that OSHA overstepped its authority without authorization from Congress in creating the ETS. Additionally, the Court stated that OSHA cannot regulate “the everyday risk of contracting COVID-19 that all face”. This ruling again puts this temporary rule on a legal stay. OSHA enforcement activities are prohibited until the case is resolved in the lower courts.
Employers originally subject to this ETS mandate will not be required to implement any of the requirements as outlined in our review of the OSHA rule.
CMS Interim Final Rule
On November 4, 2021 CMS issued an Interim Final Rule regarding COVID-19 vaccination requirements for employees of Medicare and Medicaid certified facilities. Circuit Court rulings put the mandate on a stay in 25 states which left it effective in the remaining 25 states. In December 2021, CMS initially suspended all enforcement activities of the rule but later reversed this position regarding enforcement in the 25 states for which the mandate was not put on a stay and issued modified compliance dates.
The Supreme Court upheld the CMS Interim Final Rule basing the decision on the broad powers of CMS to condition participation in the Medicare and Medicaid programs on requirements that are necessary for the health and safety of individuals who furnish services in healthcare facilities. The requirements can be found in our review of the interim CMS rule.
White House Response to Rulings
Following the Supreme Court’s release of these decisions, the White House issued a statement essentially leaving the issue of mandatory vaccinations up to the States and individual employers.
The OSHA ETS COVID-19 vaccination mandate appears to be essentially over, leaving decisions regarding vaccination mandates to individual states and employers. However, the CMS vaccination requirements have been upheld and healthcare employers subject to this rule should start or continue their implementation efforts.