Today, the United States Supreme Court issued two much-anticipated opinions concerning the Occupational Safety and Health Administration’s Emergency Temporary Standard on vaccination and testing (“OSHA ETS”) and the CMS Medicare and Medicaid Programs Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule (“CMS Vaccine Mandate”).

In a 6-3 ruling, the Supreme Court stayed the OSHA ETS from taking effect pending resolution of the case in the U.S. Court of Appeals for the Sixth Circuit.

In the per curiam opinion, the Supreme Court stated that the challengers to the OSHA ETS “are likely to succeed on the merits of their claim that the Secretary of Labor lacked authority to impose the mandate.” The Supreme Court further held that the OSHA ETS is not authorized by the Occupational Safety and Health Act. The Court noted that Occupational Safety and Health Administration had never adopted a broad public health regulation before. The “lack of historical precedent” and the broad authority to implement the regulation was a “telling indication” that the OSHA ETS is beyond the agency’s authority.

For now, the OSHA ETS is stayed pending resolution of the case in the United States Circuit Court for the Sixth Circuit. As such, this case will now return to the Sixth Circuit where the court will hear the case on its merits, and not just for preliminary relief.

Bottom Line: At this time, employers do not need to require their workforce to be vaccinated or to get tested in compliance with the OSHA ETS.

In a 5-4 ruling, the Supreme Court stayed temporary injunctions of the CMS Vaccine Mandate issued by the U.S. District Courts for the Eastern District of Missouri and the Western District of Louisiana.

In stark contrast to the ruling concerning the OSHA ETS, the Supreme Court opined that the CMS Vaccine Mandate fell within the authorities that Congress conferred upon the Secretary of Health and Human Services. The Supreme Court further held that the CMS Vaccine Mandate was not arbitrary and capricious.

Now that the temporary injunctions issued by the U.S. District Courts for the Eastern District of Missouri and the Western District of Louisiana have been stayed, covered employers in all states should take steps, or continue to take steps, to comply with the CMS Vaccine Mandate. 

Bottom Line: Employers subject to the CMS mandate must comply. CMS released guidance to State Survey Agency Directors concerning the CMS Vaccine Mandate (“Guidance”) in late December 2021 in an effort to help companies comply.

Under the Guidance, by January 27, 2022, facilities must have:

• Policies and procedures in place to ensure that all facility staff, regardless of clinical responsibility or patient or resident contact are vaccinated for COVID-19; and

• 100% of staff have received at least one dose of COVID-19 vaccine, or have a pending request for, or have been granted qualifying exemption, or identified as having a temporary delay as recommended by the CDC.

A facility that is above 80% and has a plan to achieve a 100% staff vaccination rate by February 28, 2022 would not be subject to additional enforcement action. Facilities that do not meet these parameters could be subject to additional enforcement actions depending on the severity of the deficiency and the type of facility (e.g., plans of correction, civil monetary penalties, denial of payment, termination, etc.). 

By February 28, 2022, covered facilities must have:

• Policies and procedures in place to ensure that all facility staff, regardless of clinical responsibility or patient or resident contact are vaccinated for COVID-19; and

• 100% of staff have received the necessary doses to complete the vaccine series (i.e., one dose of a single-dose vaccine or all doses of a multiple-dose vaccine series), or have been granted a qualifying exemption, or identified as having a temporary delay as recommended by the CDC,

A facility that is above 90% and has a plan to achieve a 100% staff vaccination rate within 30 days would not be subject to additional enforcement action. Facilities that do not meet these parameters could be subject to additional enforcement actions depending on the severity of the deficiency and the type of facility (e.g., plans of correction, civil monetary penalties, denial of payment, termination, etc.).

Finally, facilities failing to maintain compliance with the 100% standard by March 28, 2022 may be subject to enforcement action.