Supreme Court decision on vaccine mandate

On Jan. 13, 2022, the U.S. Supreme Court issued its much anticipated decision on two Biden administration initiatives aimed at increasing COVID-19 vaccination rates across the nation: (1) OSHA’s Emergency Temporary Standard, which requires large employers (100+ employees) to adopt mandatory vaccination policies; and (2) the Center for Medicare and Medicaid Services’ (CMS’) Interim Final Rule, which requires certified health care entities to mandate employee vaccinations.

As to the first, the Supreme Court reinstated a nationwide stay of OSHA’s ETS, finding that parties challenging OSHA’s vaccine mandate will likely prevail on the merits of the case. The Supreme Court explained that OSHA is tasked with regulating workplace health and safety. However, allowing OSHA to regulate the hazards of Americans’ daily lives would significantly expand its regulatory authority in a manner not authorized or intended by Congress. Under the Supreme Court’s ruling, the case will be sent back to the Sixth Circuit for a final decision on the merits, and OSHA cannot enforce the ETS in the interim. Given the Supreme Court’s decision, however, it is highly unlikely that the Sixth Circuit will uphold the ETS.

As to the second initiative, the Supreme Court upheld CMS’ ability to enforce its vaccination mandate for certified health care providers. The Court found that the U..S Secretary of Health and Human Services is authorized to impose detailed conditions on the receipt of Medicare and Medicaid funds, and those conditions are often aimed at preventing and controlling the transmission of communicable diseases. The Court concluded that requiring health care providers to mandate employee vaccinations as one such condition is well within the authority of CMS.

What should employers do now?
At this time, large employers need not implement OSHA’s detailed vaccination and testing requirements, and it is highly unlikely that the ETS will be upheld at all. However, employers of any size may lawfully implement their own vaccination and testing policies, as long as accommodations for eligible employees are granted in accordance with Title VII (religion) and the ADA (disability).

CMS can enforce its interim rule as to covered health care provider employers nationwide. Although further litigation on the rule is likely, covered health care providers should prepare to meet upcoming compliance deadlines in January and February 2022.

Sheila Conroy is a partner at Lake Effect Human Resources and Law LLC in Madison.

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