Supreme Court Blocks OSHA ETS, But Upholds CMS Vaccine Mandate

by | Jan 13, 2022 | COVID-19, Employment Law, The North Dakota Employer's Blog

On January 7, 2022, the United States Supreme Court heard arguments on two COVID-19 related federal vaccine or test mandates. Those arguments centered on whether the Court should enjoin the U.S. Occupational Safety and Health Administration’s (“OSHA”) Emergency Temporary Standard (“ETS”) on COVID-19 Vaccination and Testing and the Center for Medicare and Medicaid Services’ (“CMS”) interim final rule on Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination (“IFR”).

On January 13, 2022, the United States Supreme Court issued two ground-breaking opinions settling months of legal wrangling over these mandates.

The first opinion related to the OSHA Emergency Temporary Standard (ETS) which applied to large employers (100 or more employees). The United Supreme Court has blocked the OSHA ETS  and indicated that while Congress gave OSHA the power to regulate workplaces, the ETS was an overreach into regulating public health, which OSHA does not have the power to do. What does this mean for you? Large employers, not subject to the CMS IFR, are no longer required to comply with OSHA’s ETS.

However, in the second COVID-related opinion, the United States Supreme Court upheld the CMS IFR, finding that the vaccine requirement for staff at all U.S. nursing homes and other federally funded healthcare facilities can proceed. The Court lifted two injunctions that had blocked the CMS rule covering more than 17 million workers, including all who may interact with patients at more than 15,000 nursing homes. Prior to January 13, 2022, approximately half the States in the Nation were subject to the CMS IFR and the other half were subject to injunctions prohibiting the implementation of the CMS IFR.

With today’s opinions, the question will center around compliance for those employers subject to the CMS IFR.  Currently, the Center for Medicare and Medicaid Programs has indicated a two-phase compliance program. with deadlines of January 27, 2022, for Phase 1 compliance (i.e., employees must have completed a single-dose vaccination or the first dose of a two-series vaccination), and February 28, 2022, for Phase 2 compliance (i.e, employees must have completed dose two of a two-dose series).  Employers covered by the CMS mandates must also meet other applicable policy requirements for each Phase as may be required by the IFR. Should there be additional or new guidance with respect to the implementation of the CMS or any other COVID-19 related employment issues, the Employment Law group with Vogel Law Firm is available to consult and assist.

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