COVID-19: U.S. Supreme Court Blocks the OSHA Large Employer Vaccine Mandate But Allows the CMS Healthcare Mandate to Go Forward
Posted January 13, 2022

On January 13, 2022, a divided United States Supreme Court restored a nationwide stay of the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) emergency temporary standards (“Federal ETS”) for large employers with 100 or more employees on a nationwide basis.

The Court also lifted a partial stay of the Centers for Medicare & Medicaid Services (“CMS”) Vaccination Interim Final Rule (“IFR”), allowing for nationwide mandated vaccination in most Medicare and Medicaid certified health care businesses. You can find the IFR here.

The Federal OSHA ETS is Stayed Yet Again

The Federal ETS was initially implemented on November 5, 2021. Recall that it sought to require covered large employers to implement either a mandatory vaccine policy, or a mandatory policy wherein employees could choose to get vaccinated or undergo regular testing, combined with additional safeguards for unvaccinated workers (masking, etc.). It also sought to require covered employers to provide employees with paid time off to get vaccinated and to recover from any vaccination side effects. The Federal ETS was hotly contested as it was estimated to impact as many as 84 million workers throughout the nation.

The Federal ETS was almost immediately stayed by the United States Court of Appeals for the Fifth Circuit. Later, that injunction was lifted by the United States Court of Appeals for the Sixth Circuit panel. That resulted in an immediate appeal to the U.S. Supreme Court, which heard expedited oral argument in early January 2022. For additional history, you can review our prior updates on this topic here, here, and here.

Notably, today’s Supreme Court Order does not provide final resolution of the pending litigation. Rather, it simply reinstates the stay and temporarily halts the implementation and enforcement of the Federal ETS, “pending disposition of the applicants’ petitions for review in the United States Court of Appeals for the Sixth Circuit and disposition of the applicants’ petitions for writs of certiorari, if such writs are timely sought.”

Today’s ruling also does not prevent employers from continuing to implement their own internal policies regarding COVID-19 safety or COVID-19 vaccination, so long as those policies are created and implemented in compliance with applicable local, state and federal law. Nor does today’s ruling require that employers unwind any validly-implemented policies they may have already promulgated in their workplaces. As well, this ruling does not affect any local or state mandates that might require mandatory vaccination or testing for certain employers.

The ruling also does not stop OSHA from taking any further action to implement or enforce the Federal ETS pending the outcome of future litigation (this includes the looming February 9, 2022 deadline for companies to begin testing their unvaccinated employees or face OSHA penalties). In reaching its ruling, however, the Supreme Court noted that the applicants (those seeking to stay the Federal ETS) were likely to succeed “on the merits of their claim that the Secretary lacked authority to impose the mandate” because OSHA’s Federal ETS amounted to a “broad public health measure” as opposed to a targeted regulation to “… set workplace safety standards.” The Court stated, “Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather… Permitting OSHA to regulate the hazards of daily life -- simply because most Americans have jobs and face those same risks while on the clock -- would significantly expand OSHA’s regulatory authority without clear congres¬sional authorization.”

Those employers who waited to implement Federal ETS policies can hold off on taking further action, if they wish to do so. We are once again in a holding pattern while further litigation resumes at the Sixth Circuit. The Sixth Circuit will either issue a more permanent injunction, or allow some or all of the Federal ETS to go into effect at some future later date. As noted above, we anticipate that that the Sixth Circuit will now follow the lead of the U.S. Supreme Court and enjoin the Federal ETS permanently, but the final outcome remains to be seen.

CMS Vaccine Mandate Moves Ahead

Recall that the CMS mandate requires 21 types of Medicare and Medicaid-certified health care providers and suppliers at healthcare facilities participating in Medicare or Medicaid to be fully vaccinated, barring limited exemptions. You can find our past updates on this topic here and here.

At issue before the U.S. Supreme Court were injunctions issued by two separate Federal District Courts that stayed enforcement of the CMS mandate in two states (led by Louisiana and Missouri – California was not one of those states), and the Government’s request to lift those two injunctions and to allow the CMS mandate to move forward in those states covered by the injunctions. The Court agreed with the Government’s application and found that CMS mandate fell squarely within the authority Congress had conferred on the CMS Secretary.

Specifically, the Supreme Court held, “Congress has authorized the Secretary to impose conditions on the receipt of Medicaid and Medicare funds that “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services … The Secretary of Health and Human Services determined that a COVID–19 vaccine mandate will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients … The rule thus fits neatly within the language of the statute. After all, ensuring 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.”

Based on this reasoning, the Supreme Court concluded that, “… the Secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID–19,” and it granted the Government’s applications to lift the two preliminary injunctions. As with the Federal ETS, today’s Supreme Court Order is not the end of the litigation story. Litigation will resume at the District Court level; however, the CMS mandate is currently enforceable in all states, and it is likely to stay that way.

For California employers, the CMS mandate has been in effect and employers were also covered by various California Department of Health (“CDPH”) required vaccination mandates (employers also remain entitled to implement their own mandates if they elect to do so).

What This Really Means For Employers

For the Federal ETS, today’s ruling means that OSHA cannot continue to enforce the Federal ETS at this time, subject to future litigation at the District Court level. It also means that the Federal ETS deadlines noted by OSHA on its website are no longer in force. Although it is possible that the Sixth Circuit could reinstate the Federal ETS at some future point, the language of the U.S. Supreme Court Order makes it unlikely that this will occur.

For the CMS mandate, today’s ruling means that it is live and effective in all states. Presumably, any states with rules contrary to the CMS mandate are now preempted (California does not have any such rule). Covered employers who have not already done so are strongly encouraged to immediately comply with the CMS mandate. As with the Federal ETS, further litigation surrounding the CMS mandate is likely, but we expect the CMS mandate to remain operative.

LightGabler will continue to monitor these matters closely and provide future updates as new information arises.

For further information regarding vaccination mandates or other employment law issues, contact the attorneys at LightGabler.

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