Supreme Court blocks OSHA vaccine-or-test mandate; allows enforcement of CMS healthcare mandate

OSHA vaccine-or-test ETS stayed

The OSHA ETS requires that employers with 100 or more employees, among other things, mandate that employees either be fully vaccinated or undergo weekly COVID-19 testing and wear face coverings, and requires covered employers to provide paid time for employees to get vaccinated and recover from any vaccine side effects. The Supreme Court held that a stay is warranted while legal challenges to the ETS play out because OSHA likely lacks authority to implement it. The Court characterized the ETS as a broad “public health measure” rather than regulation of a uniquely “occupational” hazard.

The Court’s decision not only prevents the ETS from being enforced at this time, but the Court’s rationale also effectively prevents OSHA from pursuing a permanent standard similar in scope to the ETS. On the other hand, the Court observed that OSHA may have power to promulgate a standard more tailored to specific workplaces or jobs—for example, OSHA may be able to “regulate risks associated with working in particularly crowded or cramped environments.” It is thus possible that OSHA will attempt to promulgate a new standard mandating vaccination targeted to specific industries, workplaces, or jobs that present high COVID-19 risk.

Here are the key takeaways for employers:

• Although employers are not currently required to comply with the federal OSHA vaccine-or-test mandate, employers may still be required to establish vaccine mandates under state or local laws (e.g., New York City) or the CMS Rule. Likewise, federal contractors may be required to impose vaccine mandates on their workers if the current nationwide injunction on the federal contractor vaccine mandate is lifted.

• Employers that wish to implement vaccine mandates can still do so, provided that they (1) provide medical and religious exemptions required by law, and (2) comply with applicable state and local laws that restrict or prohibit vaccine mandates.

• Whether to implement a vaccine mandate is a question specific to each workplace and requires considering a number of factors, including the nature of the workplace (e.g., office versus meatpacking plant), workplace sentiment around vaccines, staffing and attrition concerns, and whether the workplace is unionized.

• Employers should provide clear communication to their employees about what they are doing around vaccine mandates and why. Many employees have understandably been confused by news reports about the mandates and legal challenges, and employers can help alleviate this confusion by explaining the developments and how they impact the workplace.

CMS healthcare mandate allowed to take effect

Conversely, in a separate opinion, the Supreme Court stayed lower court injunctions on the CMS Rule, which had previously been enjoined in half the country. It will now be in effect across the entire United States.  The CMS Rule requires staff (including non-employees) in most healthcare settings to be fully vaccinated for COVID-19 (without a testing option in lieu of vaccination), unless they are entitled to medical or religious exemption. The Court concluded that this mandate falls within CMS’s broad powers to condition healthcare facilities’ participation in Medicare and Medicaid programs on compliance with necessary health and safety requirements.

Employers covered by the CMS Rule should promptly take steps to come into compliance. Specifically: employers must ensure that all staff (1) either receive their first dose of a vaccine or submit an exemption request by January 27, 2022; and (2) either receive their final dose of a primary vaccine series or have an approved exemption by February 28, 2022. CMS issued a statement that these deadlines will not change as a result of the Court’s decision in states where a preliminary injunction against the CMS Rule was previously lifted.  However, it is unclear whether CMS will adjust the deadlines for employers in states where the CMS Rule was—until the Court’s January 13 decision—previously enjoined, and employers in those states should watch CMS closely for more information. CMS has also established guidance on how it will enforce the Rule. Employers should consult this guidance in working toward compliance.

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Both the OSHA ETS and the CMS Rule now return to lower courts for rulings on the merits of pending legal challenges.  But, as our colleague Sean Marotta explains, the upshot of the Supreme Court’s decisions is that the CMS Rule is likely to survive in its current form, while the OSHA ETS is not.

For more information, please contact one of the authors of this article or the Hogan Lovells lawyer with whom you work.

Authored by George Ingham, Amy Folsom Kett, Zach Siegel, and Shannon Finnegan*.

*Shannon Finnegan is a Law Clerk in the New York office.