Vigilant Blog

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Jan 13, 2022

ALERT: Supreme Court says no to OSHA vaccine mandate, yes to CMS

COVID-19Safety and Health 

On January 13, 2022 the U.S. Supreme Court issued decisions on two federal COVID-19 (coronavirus) vaccine mandates, one against and one in favor. The court temporarily halted enforcement of OSHA’s emergency temporary standard for employers with 100 or more employees and upheld the enforcement of the rule from the Centers for Medicare and Medicaid Services (CMS) for most health care settings that receive reimbursements from Medicare or Medicaid.
OSHA decision: The court ruled that OSHA regulates workplace health and safety but not public health and safety and therefore likely doesn’t have the authority to issue such a sweeping regulation for all employers with 100 or more employees, with no consideration of differing levels of risk between workplaces. The court said, “Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible.” The problem with OSHA’s general COVID-19 emergency temporary standard (ETS) for large employers is that it treats all workplaces the same, rather than considering how likely it is for the virus to be transmitted in that work environment. The court’s decision places a hold on the ETS while lawsuits challenging it proceed to a full, consolidated hearing with the U.S. Sixth Circuit Court of Appeals. The court prohibited OSHA from enforcing any portion of the ETS while that process takes place because the court believes the lawsuits are likely to succeed and because the rule would significantly burden employers and workers if the rule were allowed to take effect while its status is still in dispute (National Federation of Independent Business, et al., vs. Dept. of Labor, OSHA, US, Jan. 2022).

CMS decision: In contrast, the court ruled that CMS had the authority to issue its vaccine mandate and is likely to ultimately succeed in defending it. Medicare provides health insurance to people who are 65 or older, or who have specified disabilities, while Medicaid provides health insurance for people with low incomes. As the court explained, one of the agency’s most important functions “is to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety.” These patients are at higher risk of severe illness from the virus due to their age, disability, or other medical conditions. Requiring health care workers to be vaccinated will reduce the likelihood that they will get COVID-19 or transmit it to their patients. The court dissolved the temporary hold that two federal district courts (one in Missouri and one in Louisiana) had imposed on the CMS rule. The rule is in effect once again, while the cases challenging it proceed through the court system (Biden v. Missouri, US, Jan. 2022).

Tips: The Supreme Court’s OSHA decision said that states have much greater authority to issue a general vaccine mandate than the federal government does. Employers in California, Oregon, and Washington should be prepared for their state safety and health agencies to consider issuing their own general vaccine mandates. It’s unclear whether they will do so; Vigilant will monitor developments and keep members informed. If you have any questions, contact your Vigilant Law Group employment attorney.

This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.