What Businesses Need to Know: Supreme Court Stays OSHA’s COVID-19 Vaccination ETS But Allows Vaccine Mandate for Healthcare Facilities that Receive Medicare and/or Medicaid Funding

01.19.22

On January 13, 2022, the U.S. Supreme Court issued two rulings impacting the enforcement of federal government COVID-19 vaccine mandates. One ruling blocks the enforcement of the Occupational Safety and Health Administration’s (OSHA) vaccine-or-test Emergency Temporary Standard (ETS) for private companies, and the other ruling allows a vaccine mandate from the Department of Health and Human Services to stand for healthcare facilities that receive Medicare or Medicaid payments.

It is to be recalled that OSHA issued an ETS last year, requiring that by certain deadlines in the New Year, employers of 100 or more employees had to implement policies and procedures that required employees to be vaccinated for COVID-19 or test negative on a weekly basis. The ETS was legally challenged almost immediately. The 5th Circuit Court of Appeals stayed the ETS, preventing enforcement, and this challenge was consolidated with others in the 6th Circuit Court of Appeals for adjudication. The 6th Circuit lifted the stay. In response, OSHA issued new deadlines for employers to comply with most provisions of the ETS by January 10, 2022, and with the testing requirement by February 9, 2022, while an appeal was pending before the Supreme Court.

In NFIB v. OSHA, the Supreme Court analyzed whether issuing the vaccine-or-test mandate was within the scope of OSHA’s federal authority. In a 6-3 per curiam opinion, the majority of the Court determined that OSHA exceeded its regulatory authority, calling the ETS a “significant encroachment” into the lives and health of employees. The Court reimposed the stay pending further disposition in the 6th Circuit. The Court explained that although OSHA does have authority to regulate COVID-19 hazards in the workplace or environments that are uniquely susceptible to transmission, the ETS ignored the universal risk associated with community spread of COVID-19, finding COVID-19 is not an “occupational hazard in most” workplaces:

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. That kind of universal risk is no different from the day-to-day dangers that [we] all face from crime, air pollution, or any number of communicable diseases. 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 congressional authorization.

However, the Supreme Court reached a different outcome when it comes to medical facilities that receive Medicare or Medicaid funding. On January 13, 2022, in a 5-4 per curiam decision in Biden v. Missouri, the Court allowed a vaccine mandate by the Secretary of Health and Human Services to be upheld. The HHS regulation published in November 2020 requires facilities that participate in Medicare and Medicaid to ensure their covered employees (i.e., healthcare workers) are vaccinated against COVID-19. The Court upheld the HHS vaccination requirement as a condition of participation in these federal programs, at least until two Circuit Courts render decisions on this issue. In the meantime, the timeline for compliance with Phase 1 was updated to January 27, 2022 (first dose of two-dose vaccine such as Moderna or Pfizer or one dose of single vaccination such as Johnson & Johnson), and Phase 2 by February 28, 2022 (full vaccination, i.e., second dose of two-dose vaccination), for states that did not join in the litigation to stay the regulation.

In Biden v. Missouri, the Court also addressed the issue of whether the vaccine mandate was within the authority Congress granted to the Secretary of Health and Human Services. Unlike NFIB, the Court held that facilities receiving Medicare or Medicaid funding already have a host of requirements to comply with; that the vaccine requirement is similar; and that healthcare workers likewise have duties and qualifications imposed by the Secretary that they must comply with, likening the mandate to wearing gloves, sterilizing instruments, and washing hands.

Comment: For private employers, OSHA’s ETS on Vaccination and Testing was effectively ended, at least for now, by the Supreme Court. It will have to be seen whether the 6th Circuit Court will adopt the majority reasoning by the Supreme Court. OSHA will still enforce workplace safety regulations under the COVID-19 National Emphasis Program and General Duty Clause.

When it comes to healthcare workers and others employed by facilities that receive funding from Medicare and/or Medicaid, the Supreme Court’s ruling allows the HHS Secretary to require COVID-19 vaccinations for the time being.

Whether the HHS vaccine requirement applies to your facility, or your private business has its own COVID-19 vaccine policy, medical and/or religious exemptions may apply. The attorneys at Weber Gallagher can help if your organization needs to develop or update a vaccine policy, needs to address requests for medical and/or religious accommodations, or has questions about work-related injuries and COVID-19 incidents in the workplace.

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Ralph Richardson
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rrichardson@wglaw.com

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