In its ruling on January 13th, 2022, the U.S. Supreme Court blocked the Occupational Safety and Health Administration’s (OSHA’s) vaccine-or-test emergency temporary standard (ETS). Meanwhile, a separate ruling allowed enforcement of the Centers for Medicare and Medicaid Services (CMS) healthcare worker mandate. The rulings mark the latest in a series of federal court decisions that began in early November 2021. Meanwhile, on January 5, the Sixth Circuit court upheld an injunction on a third vaccine mandate for federal contractors.

Brief Overview of Vaccine-or-Test and CMS Mandates

Published in the Federal Register on November 5th, 2021, the ETS would cover employers with at least 100 employees. Previously, it had gone into effect on January 10. In summary, the standard would require covered employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy. Therefore, covered employers would require their employees to either:

  • receive a COVID-19 vaccination; or
  • undergo regular COVID-19 testing and wear a face covering at work.

Similarly, on November 4th, 2021, the Federal Register published an interim final rule created by the CMS. However, U.S. District Courts in two states issued preliminary injunctions against the rule’s implementation. Subsequently, on December 2nd, 2021, the CMS released a memorandum stating it would not enforce the interim final rule while there were court-ordered injunctions in place. Originally, the published rule required staff working in Medicare- or Medicaid-certified providers to:

  • receive a full vaccination against COVID-19 by January 4th, 2022, and
  • to receive their first shot before December 6th, 2021.

Supreme Court Blocks Vaccine-or-Test ETS

In a 6-3 decision, the Supreme Court blocked enforcement of OSHA’s vaccine-or-test mandate. In brief, the Supreme Court (the Court) found that challengers to the mandate were likely to succeed on their argument that OSHA lacked authority to enforce the ETS. Indeed, the Court reasoned that OSHA could only “set workplace safety standards, not broad public health measures.” Furthermore, although the Court acknowledged COVID-19 poses a risk in the workplace, it did not qualify as an occupational hazard in most cases. Presently, the decision puts the ETS on hold pending further review in the Sixth Circuit appellate court. Additionally, employers may still need to follow vaccination and testing requirements at the state and local levels.

Supreme Court Allows the CMS Mandate

Meanwhile, in a 5-4 decision, the Court lifted injunctions on the CMS vaccine mandate for health care workers. In general, the Court found precedent that the CMS can establish conditions for health care facilities in order to receive Medicare and Medicaid funds. Furthermore, the Court noted that the CMS’s mission is to ensure covered providers protect the health and safety of patients. According to the Court avoiding transmitting viruses to patients is included in that mission. Therefore, enforcing the vaccine mandate for health care workers falls under the CMS’s authority, as intended by Congress.

Enforcing the CMS Mandate

In conclusion, covered employers must now take steps to comply with the vaccine mandate for health care workers. Specifically, covered facilities need to:

  • Ensure that all staff members receive their first dose of the COVID-19 vaccine by January 27th, 2022. (The rule makes provision for those pending an exemption request or those whose vaccination has been delayed.)
  • Implement policies and procedures to comply with the rule.
  • Ensure that all staff members are fully vaccinated by February 28th, 2022. (Again, the rule allows leniency for those pending exemption requests and delays.)

Generally, the CMS will exercise discretion in its enforcement of the deadlines. Namely, a covered facility may have more than 80% of its staff receive the first dose by January 27, with 100% of staff receiving the first dose within 60 days. Likewise, a facility may have 90% of staff fully vaccinated by February 28, with a plan for 100% staff vaccination within 30 days.