By Mark Macchi, Peter Moser, Catherine Reuben, Alexandra Mitropoulos January 14, 2022
On Thursday, January 13, 2022, the Supreme Court of the United States put on hold the Emergency
Temporary Standard (“ETS”) issued by the Occupational Safety and Health Administration
(“OSHA”), which ordered large private sector employers to mandate that their workers were either
vaccinated against COVID-19 or submit to weekly testing. On the same day, the Court allowed a
government-ordered vaccine mandate for workers at health care facilities participating in
Medicare and Medicaid to go into effect nationwide.
Large Employer Vaccine Mandate (OSHA ETS) – Stayed
OSHA first published its ETS in early November of 2021, and it was met with legal challenges
throughout the country. Multiple petitions for review of the standard were consolidated in the
Sixth Circuit, but not before the Fifth Circuit issued an injunction to block enforcement of the ETS.
In December of 2021, the Sixth Circuit lifted that injunction, allowing the ETS to go into effect.
Applicants then sought emergency relief from that order from the Supreme Court in the case of
National Federation of Independent Business v Dept. of Labor. Meanwhile, private employers that
were anticipating being held subject to the ETS prepared and began to apply their vaccine
Ultimately, the Supreme Court decided that OSHA may not enforce the ETS at least during the
pendency of the matter at the 6th Circuit. After months of legal wrangling, the Court’s decision is
the final word on whether the ETS should remain in effect during the pendency of legal challenges.
The Court held that the plaintiffs were likely to succeed on the merits that OSHA had exceeded its
authority by imposing a mandate on all private sector workplaces with at least 100 employees,
which would have required the vaccination of 84 million Americans. It reasoned that OSHA is only
empowered to set workplace safety standards; thus, it may have authority to regulate occupation specific
risks related to COVID-19, but not broad public health measures at large. The Court noted
that COVID-19 is not an “occupational hazard,” but rather it is a “kind of universal risk [that] is no
different from the day-to-day dangers that all face . . . .”
Health Care Facilities Vaccine Mandate – Allowed
Then, in Biden v. Missouri, the Supreme Court held that the government may require health care
facilities to impose vaccine mandates on their staff in order to maintain eligibility for Medicare and
Medicaid funding. The Centers for Medicare and Medicaid Services (“CMS”) had announced in
November 2021 that federal funding to participating facilities would be withheld if those facilities did not impose vaccine mandates among its staff. The CMS interim rule was met with challenges
from the states of Louisiana and Missouri, and was stayed under injunctions from the Fifth and
Eighth Circuit Courts of Appeals. Now, the Supreme Court has lifted both injunctions and allowed
the rule to take effect.
Impact on Employers
As a result of these decisions, large private sector employers are no longer required under the ETS
to mandate that their workforce either get vaccinated or test weekly. Yet, those employers may
still be required to maintain vaccination and testing policies under state or local laws, or may want
to continue keeping their own vaccination and testing policies in effect for safety purposes. The
Supreme Court’s decision to block implementation of the ETS does not preclude employers from
enacting their own vaccination policies, or from voluntarily adopting those parts of the ETS that
they consider beneficial and achievable (for example, face coverings, social distancing, informing
the employer if an employee has COVID-19, etc.), all with the goal of promoting safety and better
enabling the employer to meet its ongoing obligations under OSHA’s general duty clause.
Health care facilities that wish to continue receiving federal funding through Medicare and
Medicaid, however, must comply with the CMS rule. Specifically, the CMS rule requires
participating facilities to ensure that their employees, volunteers, contractors, and other workers
receive a COVID-19 vaccine, unless exempt due to recognized medical conditions, religious beliefs
or practices. The CMS rule also does not cover staff who telework full-time. A facility’s failure to
comply may lead to monetary penalties, denial of payment for new admissions, and ultimately
termination of participation in the Medicare and Medicaid programs. A list of the types of health
care entities that are subject to the CMS rule can be found here.
According to the most recent update from CMS, health care facilities participating in Medicare and
Medicaid must comply with Phase 1 (having their staff vaccinated with the first dose of the COVID-
19 vaccine) by January 27, 2022, and Phase 2 (staff fully vaccinated) by February 28, 2022. CMS
may issue further updates or guidance regarding these deadlines.
The Federal Contractor Vaccine Mandate remains subject to an injunction issued by a federal
court in Georgia on December 7, 2021, which blocked the implementation of the Biden
administration’s vaccine mandate for federal contractors nationwide.
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