United States Supreme Court Decisions on OSHA and CMS Rules
On January 13, 2022, the United States Supreme Court (the “Court”), in a 6-3 decision, stayed the implementation of the Occupational Health and Safety Administration’s (“OSHA”) November 5, 2021 Emergency Temporary Standard (ETS), which requires, with certain exceptions, private employers having at least 100 employees to adopt written policies and procedures either (1) mandating vaccination against COVID-19 or (2) requiring unvaccinated workers to undergo weekly Covid–19 testing and wear a face covering at work. 86 Fed. Reg. 61402 (2021). The ETS further requires that unvaccinated employees who do not comply with OSHA's rule be “removed from the workplace,” and employers who commit violations face up to $14,502 for a standard violation, and up to $145,027 for a willful one. 29 C.F.R. § 1903.15(d) (2021). The Court’s decision means these rules will not go into effect at this time.
The majority of the Court described the ETS as “a blunt instrument.” Nat'l Fed'n of Indep. Bus. v. Dep't of Lab., Occupational Safety & Health Admin., 595 U.S.__ at *3 (2022), 2022 WL 120952 (per curiam). The Court noted that OSHA’s ETS lacks historical precedent and exceeds its statutory authority. Id., at *5, 8. The Court reasoned that the Secretary of Labor is empowered to set workplace safety standards, but not broad public health measures. The Court further reasoned that although COVID-19 is a risk in many workplaces, COVID-19 is a universal risk that cannot be understood as an occupational hazard, and therefore, OSHA improperly expanded its regulatory authority in implementing the ETS. Id., at *6-7. The decision did not directly strike down OSHA’s ETS (the ETS is stayed for now). The decision means employers are not required to adopt a vaccine-or-testing written policy by February 9, 2022, but we want to alert employers that the decision does not affect COVID-19 vaccination and testing requirements, if any, imposed at the state and local levels.
In addition, we also want to alert employers that right after the Court issued its decision, the Secretary of Labor issued the statement, stating that “[r]egardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program and General Duty Clause[,]” which allows OSHA to ensure general occupational safety and health and protect employees from workplace risks. Some form of a vaccine-or-testing mandate might be revived in the future.
The Court recognized OSHA’s authority to regulate occupation-specific risks related to COVID-19, where the virus poses a special danger because of the particular features of an employee's job or workplace; for example, researchers who work with the COVID-19 virus and the employees who work in particularly crowded or cramped environments. Id. at *7. Therefore, if OSHA takes the Court’s guidance and regulates risks associated with specific industries or workplaces where Covid-19 could be labeled as an “occupational hazard,” OSHA might eventually implement a vaccine-or-testing mandate for those businesses. We will keep you apprised of any developments. For now, the key takeaway from the Court’s decision is that OSHA’s ETS is stayed and employers are not required to adopt vaccine-or-testing policies.
On the same day, the Court, in a 5-4 decision, allowed the Centers for Medicare & Medicaid Services’ (“CMS”) December 28, 2021 interim final rule/vaccine mandate (the “Rule”)—requiring participating facilities to ensure that their staff, unless exempt for medical or religious reasons, are vaccinated against COVID–19 to receive Medicare and Medicaid funding—to proceed in 24 states (Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, and Wyoming) where it had been enjoined. 86 Fed. Reg. 61555-01 (2021). Biden v. Missouri, 595 U.S. ____ (2022), 2021 WL 6061692 (Mem) (per curiam). The Court held that the Secretary of Health and Human Services acted within its regulatory authority to mandate the vaccine among certain healthcare facilities’ staffs because Congress has authorized the Secretary to impose conditions on the receipt of Medicaid and Medicare funds that “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.” The Secretary found and determined that a COVID–19 vaccine mandate will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients. 42 U. S. C. § 1395x(e)(9). Id. at * 5. The Court also based its ruling on the fundamental principle of the medical profession—do no harm -- and the Secretary’s finding that the vaccine mandate had received healthcare workers’ and public health organizations’ overwhelmingly support. Id., at *5,7. The CMS mandate was already proceeding in the 28 states that were not part of the injunction issued by the appellate court.
CMS immediately issued an announcement and stated that it is “extremely pleased” with the Court’s decision relating to the Rule, which will cover 10.4 million healthcare workers at 76,000 medical facilities and it will “fully implement” the Rule with the Court’s blessing. In addition, because the Rule preempts any state laws that conflict with it, we strongly encourage all covered healthcare providers and their workers to immediately implement the Rule. To comply with the Rule, Phase 1, by January 27, 2022, 100% of staff of the covered facility must have received at least one dose of the vaccine and Phase 2, by February 28, 2022, they must have all doses of a multiple-dose vaccine series or one dose of a single-dose vaccine. Facilities that do not meet this requirement will receive notice of non-compliance. However, if vaccination rates are above 80% and the facility has a plan to achieve a 100% staff vaccination rate by February 28, 2022, it would not be subject to additional enforcement action (e.g., plans of correction, civil monetary penalties, denial of payment, termination, etc.). And if vaccination rates are above 90% and the facility has a plan to achieve a 100% staff vaccination rate by March 30, 2022, it would not be subject to addition enforcement action.
Please note that in addition to the requirements above, covered facilities must develop and implement policies and procedures for ensuring all facility staff, regardless of clinical responsibility or patient or resident contact are vaccinated for Covid-19 in both phases to comply with the Rule. Also, the deadlines do not apply to staffs who have a pending request for, have been granted a qualifying exemption, or are eligible for a temporary delay in vaccination as recommended by the CDC. Finally, by March 28, 2022, CMS states that facilities covered by the CMS Rule that fail to maintain compliance with the 100% standard may be subject to enforcement action, including civil monetary penalties, denial of payment, and termination from the Medicare/Medicaid program.
For questions relating to any of these updates, please contact any of the attorneys below.
Brian Smith - Employment & Labor Practice Group Chair - firstname.lastname@example.org
Katie Anderson - Healthcare Practice Group Chair - email@example.com
Rick Hunsaker - Professional Liability Practice Group Chair - firstname.lastname@example.org
Toney Tomaso - Workers' Compensation Practice Group Chair - email@example.com