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Employer Update: Supreme Court Halts COVID-19 Vaccination and Testing Emergency Temporary Standard, Upholds Centers for Medicare and Medicaid Services Vaccination Mandate

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On January 13, 2022, the United States Supreme Court ruled, in a 6-3 decision, granted an emergency stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) requiring employers with at least 100 employees “to ensure their workforces are fully vaccinated or show a negative test at least once a week.”

In the per curium decision, the Court held that the risk of contracting COVID-19 was not specifically occupational, but was a “universal risk,” “no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.”

The Court determined that allowing OSHA to regulate the “hazards of daily life,” as opposed to occupational life, “would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

Noting that “in [OSHA’s] half century of existence, it had never before adopted a broad public health regulation of this kind—addressing a threat that was untethered, in any casual sense, from the workplace,” the Court considered this “‘lack of historical precedent,’ coupled with the breadth of authority that [OSHA]” claimed, as a “‘telling indication’ that the mandate extend[ed] beyond the agency’s legitimate reach.”

Ultimately, the Court determined that our system of government requires such a measure to be “chosen by the people through a democratic process.”  Because Congress had “indisputably given” OSHA the power to regulate occupational dangers, but not the “power to regulate public health more broadly,” the ETS was improperly proposed.

Minnesota OSHA will suspend its enforcement of the ETS given the Supreme Court’s ruling. The Court’s emergency stay will remain in effect while the Sixth Circuit Court of Appeals decides the merits of the case.

On the same day, the Supreme Court ruled, in a 5-4 decision, to reinstate a rule issued by the Department of Health and Human Services (“HHS”), acting through the Centers for Medicare and Medicaid Services (“CMS”) requiring facilities that receive Medicare and Medicaid funding to ensure that their staff—unless exempt for medical or religious reasons—are vaccinated against COVID-19.

The rule applies to Medicare- and Medicaid-participating hospitals, nursing homes, ambulatory surgical centers, hospices, rehabilitation facilities, and more – all of which had previously been required to maintain and enforce an “infection prevention and control program designed . . . to help prevent the development and transmission of communicable diseases and infections.”

In its decision, the Court noted that challengers to the rule acknowledged that HHS was always authorized to “require hospital employees to wear gloves, sterilize instruments, wash their hands in a certain way and at certain intervals,” etc., and that, while the “vaccine mandate goes further than what [CMS] has done in the past to implement infection control,” CMS “has never had to address an infection of this scale and scope before.”

Furthermore, as the Court pointed out, healthcare employees have long been required by state laws to be vaccinated for diseases such as hepatitis B, influenza, and measles, mumps, and rubella—a reason CMS had not previously adopted vaccine mandates.

What does this mean for employers? Ultimately, 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.

If you have questions about how these cases might apply to your business, contact one of the employment law attorneys at Gislason & Hunter LLP.

Cases Mentioned in this Article:

Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor, Occupational Safety & Health Admin., No. 21A244, 2022 WL 120952 (U.S. Jan. 13, 2022).

Biden v. Missouri, No. 21A240, 2022 WL 120950 (U.S. Jan. 13, 2022)