On January 7, 2022, the United States Supreme Court heard combined oral arguments on whether litigation is likely to succeed challenging two federal vaccine mandates: (1) the Occupational Safety and Health Administration’s (OSHA) Vaccination and Testing Emergency Temporary Standard (ETS) and (2) the Centers for Medicare and Medicaid Services’ (CMS) COVID-19 vaccination mandate for certain healthcare workers (CMS Mandate). The arguments came at a critical time as COVID-19 cases surge, adding more pressure to workplaces across the nation.

On January 13, 2022, the Supreme Court issued opinions entering a temporary injunction on enforcement of the OSHA ETS and halting a temporary injunction on the CMS Mandate.

OSHA ETS

The OSHA ETS, which applied to most employers with 100 or more employees, required employees to be vaccinated against COVID-19 or wear face masks and submit to weekly testing. The central question before the Court was who gets to decide how to protect employees against COVID-19. In concluding that Congress did not clearly authorize OSHA to use its ETS authority to impose such sweeping vaccination mandates, the Court entered a temporary injunction, barring enforcement of the OSHA ETS. The Court stated that even though “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.” In sum, the OSHA ETS is on hold until the trial court makes a final decision on the merits of the litigation challenging the OSHA ETS.

CMS Mandate

With the exception for medical and religious accommodations, the CMS Mandate requires staff who work at facilities that receive Medicare and Medicaid funding to be fully vaccinated against COVID-19. Facility staff vaccination rates under 100% (not counting those who fall under an accommodation) will constitute non-compliance under the mandate, which could result in plans of correction, civil monetary penalties, denial of payment, and termination of funding.

The Court concluded that Congress authorized CMS to take steps to protect the health and safety of Medicaid and Medicare recipients. In doing so, the Court noted that “[e]nsuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm.” As a result, the CMS Mandate remains in effect while the trial court makes a final decision on the merits of the litigation challenging the CMS Mandate.

If you have any questions about the CMS Mandate or generally, the impact of COVID-19 on your business, please do not hesitate to contact an attorney in GCT’s Employment Law Practice Group.