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U.S. Supreme Court Blocks OSHA “Vaccinate or Test” Mandate But Upholds CMS’ Vaccine Requirement for Healthcare Workers 

US Supreme Court

On January 13, 2022, the United States Supreme Court blocked enforcement of OSHA’s 100 plus employee vaccinate or test mandate but upheld the vaccine requirement for healthcare workers. Healthcare providers must ensure their employees are vaccinated against COVID-19 barring religious or medical exemption, or otherwise risk losing Medicare and Medicaid funding. In contrast, private employers will not be compelled by OSHA to require their employees to be vaccinated or undergo weekly testing and wear a mask. 

100+ Employee COVID-19 Vaccine Mandate

On September 9, 2021, President Biden announced his plan to curb the spread and impact of COVID-19. Per President Biden’s Executive Order, the Occupational Safety and Health Administration of the Department of Labor issued an emergency temporary standard (“ETS”) requiring all private employers with at least 100 employees to require that their employees be vaccinated or otherwise undergo weekly COVID-19 testing and wear a mask. While the rule allowed for limited exceptions – employees who worked exclusively remotely or outdoors were considered exempt – its broad application meant an estimated 84.2 million Americans would be subject to its mandate.

In a 6-3 decision, the Supreme Court stayed enforcement of OSHA’s ETS, finding that Congress had not conferred upon OSHA the regulatory power it sought to enforce the vaccinate or test mandate. Recognizing that OSHA does have the power to regulate occupational dangers, the Court distinguished COVID-19 as not solely an occupational hazard, but rather a “universal risk no different from day-to-day dangers that all face….” In so recognizing, the Court reasoned that OSHA has the power to regulate occupational hazards, but it does not have power to broadly regulate public health.

Employers may still mandate employee COVID-19 vaccination, so long as they provide medical and religious exemptions. 

While the requirements of the ETS are stayed, Congress, the states, and localities have the ability to pass legislation creating workplace pandemic rules. As noted by President Biden, “it is now up to States and individual employers to determine whether to make their workplaces [ ] safe…by requiring employees to take the simple and effective step of getting vaccinated.” 

CMS Mandate for Health Care Providers

The Supreme Court, in a 5-4 decision, upheld the Department of Health and Human Services’ Centers for Medicare & Medicaid Services (“CMS”) interim final rule requiring all staff in healthcare facilities that participate in Medicare and Medicaid programs to be vaccinated (or obtain a religious or medical exemption). 

Under CMS’ rule, facilities must have a plan or process for vaccinating all eligible staff, and provide a process for employees to seek medical and religious exemption. Further, facilities must track and document staff vaccinations, including booster doses, contraindications, and exemptions. If facilities do not comply, they could face monetary penalties, denial of payment for new admissions, and termination of participation in Medicare and Medicaid. It goes without saying that the stakes are high for covered entities to comply with CMS’ rule.

Federal Contractor Vaccine Mandate

The federal contractor vaccine mandate remains on hold. On December 7, 2021, the United States District Court for the Southern District of Georgia entered a nationwide injunction blocking the federal contractor vaccine mandate from taking effect. The Biden Administration appealed the injunction to the United States Court of Appeals for the Eleventh Circuit, requesting that the court lift the nationwide injunction. On December 17, 2021, the Eleventh Circuit denied the Administration’s request and set an expedited briefing schedule on the merits of the case. As a result of the Eleventh Circuit’s decision, the federal contractor vaccine mandate remains on hold pending further court order. 

On December 20, 2021, the United States District Court for the Eastern District of Missouri entered a separate order blocking the federal contractor vaccine mandate in Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming.

Employers should be mindful that while the Supreme Court has spoken on OSHA’s ETS and CMS’ rule, many states and localities have put in place COVID-19 vaccination mandates. As you navigate the web of federal, state, and local vaccination, testing, and masking requirements in the wake of the Supreme Court’s decisions, please reach out to our Employment and Labor Practice Group and/or Health Care Practice Group for guidance.

Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.

About the Authors

Leanne Lane Coyle is an Associate in the firm's Employment and Labor Practice Group and its related sub-groups,  Employment and Collective Class Actions, Employment & Employee Relations, Labor, Trade Secret & Non-Compete Law, and Wage and Hour. She defends employers in state and federal court, and before administrative agencies, in matters involving all major employment statutes and counsels them on proactive statutory compliance.

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Andrea M. Kirshenbaum is the Chair of the Firm's Employment and Labor Practice Group and its related Practice Groups, Employment and Collective Class Actions, Employment & Employee Relations, Labor, Trade Secret & Non Compete Law, and Wage and Hour. She is also a member of the Firm's Appellate Department. She defends employers nationally in federal and state court litigation involving all major employment statutes, represents them in related government investigations, and counsels them proactively on compliance with these statutes.

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Theresa A. Mongiovi is a Principal in the firm's Employment and Labor Practice Group. She concentrates her practice on representing businesses, municipalities, non-profits, and executives in all aspects of the employment relationship. She also represents clients in business and commercial litigation. She litigates in various administrative agencies including the EEOC and PHRC as well as all state and federal courts in Pennsylvania.

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Angela H. Sanders is a Principal in the firm's Employment and Labor Practice Group. She focuses her practice in the areas of employment law, employment litigation, and civil litigation. Ms. Sanders provides day-to-day counseling to employers on a wide range of employment topics, including wage and hour issues, FMLA compliance, harassment and discrimination, hiring, employee misconduct, discipline and termination, drug and alcohol abuse, OSHA compliance, collective bargaining, and labor relations. She also assists clients in developing employee manuals, employment policies, and diversity plans. She regularly conducts training on employment law topics for employers, businesses, and professional and industry groups.

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Paula G. Sanders is a Principal and Co-Chair of the Firm's Health Care Practice Group, where she focuses her national practice exclusively on health care law. She represents clients on both substantive and procedural aspects of health facility regulation, such as surveys; licensure; Medicare/Medicaid; compliance; RAC, MIC, PERM, CERT and ZPIC audits; accreditation; payment matters; HIPAA; fraud and abuse, False Claims Act investigations and voluntary disclosures. 

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