On Thursday, January 13, 2022, the United States Supreme Court released its highly anticipated decisions regarding the Occupational Safety and Health Administration’s COVID-19 Vaccination and Testing Emergency Temporary Standard (“OSHA ETS”) and the Centers for Medicare & Medicaid Services Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule (“CMS Vaccine Mandate”). While the Court blocked the OSHA ETS from taking effect, pending resolution of the case by the Sixth Circuit Court of Appeals, the Court also upheld the CMS Vaccine Mandate and stayed the temporary injunctions issues by two federal district courts. Here’s what employers need to know about these decisions.
OSHA ETS
Supreme Court’s Holding and Rationale
The Court blocked the OSHA ETS on the basis that OSHA lacks “clear congressional authorization” to issue such a broad mandate. The Court stated that, “[a]lthough COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most.” That is, COVID-19 can and does spread in any place where people gather—not just the workplace. Therefore, the broad nature of the OSHA ETS “takes on the character of a general public health measure, rather than an ‘occupational safety or health standard[,]’” and significantly expands OSHA’s regulatory authority without clear congressional authorization.
The Court further clarified that OSHA does have the authority to regulate occupation-specific risks related to COVID-19. OSHA may impose mandates where COVID-19 poses a “special danger because of the particular features of an employee’s job or workplace,” such as work environments that are particularly crowded or cramped. Stated differently, OSHA has the authority to impose regulations that are targeted at specific types of employment where the virus poses a specific danger.
Notably, the Court’s decision only temporarily blocks the OSHA ETS while the case is further litigated in the Sixth Circuit Court of Appeals. However, the Court’s rationale will likely be taken by the Sixth Circuit as guidance on how the Court perceives the underlying issues should be resolved.
In addition to the unsigned opinion that announced the Supreme Court’s decision, Justices Gorsuch, Thomas, and Alito issued a concurring opinion, which further explained those individuals’ reasoning for issuing the stay. Those justices focused on the belief that as the law stands today, the power to enact such an ETS rests with the States and Congress, not OSHA. Specifically, a federal agency’s power is limited by what Congress expressly assigns to such agency, and in the opinion of these three justices, Congress has not assigned OSHA the authority to issue sweeping health standards that affect workers’ lives outside of the workplace. Over the last two years, Congress has enacted various pieces of legislation aimed at combatting COVID-19, none of which have given any agency, including OSHA, the express power to enact a mandate such as this.
Justices Breyer, Sotomayor, and Kagan issued a joint dissent to the decision, making clear that they would not issue a stay of the OSHA ETS. Broadly and generally stated, these justices believe that OSHA has been mandated to protect employees from hazards in the workplace, regardless of whether the hazards exist outside the workplace as well.
If my organization is not covered by the CMS or Federal Contractor Vaccine Mandates, are we off the hook?
Unfortunately, it’s not that simple. As we previously cautioned in our last e-brief, OSHA’s “general duty” clause requires every private employer to provide a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” OSHA has been using the general duty clause to issue citations to employers for safety violations relating to COVID-19.
OSHA’s “Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” (“Guidance”) states that employers should implement a workplace COVID-19 prevention program as “the most effective way to mitigate the spread of COVID-19 at work.” OSHA’s Guidance goes on to suggest the COVID-19 prevention program should promote “[v]accinations as the most effective way to protect against severe illness or death from COVID-19,” provide paid time off to workers to receive the vaccination and recover from any side effects, and ensure regular testing and mask requirements for unvaccinated individuals. In other words, the Guidance outlines that the requirements of the OSHA ETS are what OSHA thinks are necessary to comply with the general duty clause. Consequently, even though the OSHA ETS has been temporarily blocked, all private employers—regardless of size and whether the OSHA ETS may eventually apply to your organization or not—should seriously consider the potential risk of a general duty clause violation if the organization does not take steps that comply with OSHA’s Guidance.
All of that stated, given the Supreme Court’s decision yesterday, there is now a significant question about the enforceability of OSHA citations under the general duty clause that, essentially, attempt to enforce the requirements of an emergency temporary standard that has been stayed. Overall, there is still a great deal of uncertainty as to what employers’ obligations are when it comes to taking steps to prevent and mitigate the spread of COVID-19 in most workplaces.
CMS Vaccine Mandate
Supreme Court’s Holding and Rationale
The Court determined that the CMS Vaccine Mandate was within the power granted to the Secretary of Health and Human Services (“Secretary”) by Congress to impose conditions on facilities receiving Medicare and Medicaid funds in the interest of the health and safety of individuals who receive services through the programs.
In support of its position, the Court looked at the “conditions of participation” that have been routinely imposed upon health care facilities that participate in the Medicare and Medicaid programs in determining that this was a legal exercise of the Secretary’s power. In particular, the Court noted that the Secretary routinely imposes conditions of participation that relate to the qualifications and duties of health care workers, including infection control measures. The Court recognized that the CMS Vaccine Mandate goes farther than past conditions of participation to implement infection control measures. However, the Court supported the CMS Vaccine Mandate on the basis that the Secretary has never had to address an infection problem on the same scale and scope as the COVID-19 pandemic before, making it a valid exercise of the Secretary’s power.
The Court also recognized that healthcare workers are routinely required to be vaccinated for other diseases, and pre-existing state requirements that health care workers be vaccinated for diseases was a large reason the Secretary had never previously adopted a vaccination mandate as a condition of participation in the federal programs. Additionally, the Court cited “overwhelming support” from health care workers and public health organizations for the CMS Vaccine Mandate.
Compliance Deadlines for CMS Vaccine Mandate
CMS expects all providers’ and suppliers’ staff to have received the appropriate number of vaccine doses by the timeframes specified below unless exempted as required by law or delayed as recommended by CDC.
- By Thursday, January 27, 2022,
- A facility is compliant if:
- Policies and procedures are developed and implement to ensure all facility staff are vaccinated for COVID-19, and
- 100% of staff have received at least one dose of a COVID-19 vaccine, have a pending request for or granted a qualifying exemption, or identified as having a temporary delay as recommended by the CDC.
- A facility is non-compliant if:
- Less than 100% of all staff have received at least one dose of a COVID-19 vaccine, have a pending request for or granted a qualifying exemption, or identified as having a temporary delay as recommended by the CDC.
- A facility that has above 80% and a plan to achieve 100% staff vaccination rate by Monday, March 28, 2022, is not subject to additional enforcement action.
- A facility is compliant if:
- By Monday, February 28, 2022,
- A facility is compliant if:
- Policies and procedures are developed and implemented to ensure all facility staff are vaccinated for COVID-19, and
- 100% of staff have received the necessary doses to complete the vaccination series, have been granted a qualifying exemption, or identified as having a temporary delay as recommended by the CDC.
- A facility is non-compliant if:
- Less than 100% of staff have received the necessary doses to complete the vaccination series, have been granted a qualifying exemption, or identified as having a temporary delay as recommended by the CDC.
- A facility that has above 90% and a plan to achieve 100% staff vaccination rate by Monday, March 28, 2022, is not subject to additional enforcement action.
- A facility is compliant if:
- By Monday, March 28, 2022,
- If a facility fails to maintain compliance with the 100% vaccination standard, it may be subject to enforcement action.
Compliance with the CMS Vaccine Mandate is extremely important for covered facilities, especially since the sole enforcement remedy for noncompliance may be termination from participating in the federal Medicare and Medicaid programs.
If you have any questions on this topic, or need assistance navigating these changes, please contact our Labor & Employment Law Practice Group. We encourage you to subscribe to our Labor & Employment E-Briefs to keep up with the latest HR news, tips, and updates.