CLIENT ALERT:  U.S. Supreme Court Halts OSHA’s Vaccination or Test Rule for Private Sector Employers, Allows Mandate for Healthcare Workers 

Yesterday, the U.S. Supreme Court blocked the Occupational Safety and Health Administration’s (“OSHA”) November 2021 Emergency Temporary Standard (“ETS”), which imposed COVID-19 vaccination and testing requirements for employers with 100 or more employees. 

At the same time, the Court green-lighted the Centers for Medicare and Medicaid Services’ Interim Final Rule (the “CMS Rule”), which imposed vaccination requirements for healthcare workers at certain facilities receiving Medicaid and Medicare funds.   

Vaccination or Test Rule for Large Employers

In a brief opinion, the Supreme Court stayed enforcement of the ETS, which would have required all employers with 100 or more employees to implement and enforce vaccination policies.  The Court concluded OSHA did not have authority to issue the ETS, which would have impacted more than 84 million American workers, because OSHA’s authority involves only “workplace safety standards, not broad public health measures.” 

Accordingly, large employers not complying with the ETS vaccination and testing requirements will not be subject to fines from OSHA.  However, other regulations or state laws may have similar requirements.  Additionally, employers should be on the lookout for OSHA to promulgate new, narrower COVID-19 guidance, as the Court left the door open for OSHA to implement “targeted regulations” for occupational risks related to COVID-19.

Vaccination Rule Effective for Healthcare Workers

In a separate opinion, the Court allowed the CMS Rule to move forward, lifting a preliminary injunction in place in several states.  (Delaware, Pennsylvania, New Jersey and Maryland were among the states not covered by the preliminary injunction.)  The Court found the agency had authority to issue the rule in the interest of protecting the health and safety of patients receiving Medicaid- and Medicare-funded services.

The CMS Rule applies to most Medicare- and Medicaid-certified providers and suppliers.  According to a December 28, 2021 update, facilities covered by CMS that are located in states where the preliminary injunction did not apply must comply with Phase 1 of the CMS Rule by January 27, 2022.  Phase 1 requires that staff at covered facilities receive at least one dose of a two-dose vaccine (or the single-dose Johnson & Johnson vaccine) prior to providing any care, treatment, or services to patients.  Covered facilities must comply with Phase 2, requiring staff to obtain the second dose of a two-dose vaccine, by February 28, 2022.  Given the Court’s decision, covered facilities located in the remaining states should also be prepared to comply with these deadlines.

Conclusion

If you have questions about the Court’s decisions or how they impact your organization, please contact the Labor & Employment Team at Potter Anderson (Jennifer Gimler Brady, Kathleen Furey McDonough, Jennifer Penberthy Buckley or Clarissa Chenoweth-Shook).

Potter Anderson appreciates the contributions of associate Carson Bartlett on the drafting of this alert.

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