Federal COVID-19 Vaccine Mandates: Litigation Update

Supreme Court Blocks the OSHA ETS; Upholds the CMS Mandate

In a 6-3 opinion, the Supreme Court of the United States blocked the OSHA ETS, holding that although the Secretary of Labor, acting through OSHA, is empowered to set workplace safety standards, the Secretary is not entitled to enact “broad public health measures.”  The opinion further states that the mandate would constitute “a significant encroachment into the lives – and health – of a vast number of employees.”  This ruling is a preliminary decision; the issue will be sent back to the Sixth Circuit for further review.  

The Supreme Court ruling only stays the enforcement of the OSHA ETS.  Unless restricted or prohibited by state or local law, employers may voluntarily impose their own vaccine mandates or vaccine/mask/test options, subject to accommodation requirements under federal, state, or local law.

The same day, the Supreme Court, in a 5-4 opinion, upheld the CMS Vaccine Mandate.  By way of reminder, the CMS mandate applies to workers at hospitals and other health care facilities that participate in the Medicare and Medicaid programs.  The Court found that Congress has specifically authorized the Biden administration to impose conditions on those federally-funded facilities by way of federal law.  Specifically, the Court found that the Secretary of Health and Human Services’ determination that a vaccine mandate is “necessary to promote and protect patient health and safety” in the face of the ongoing pandemic, fits neatly within the language of that law.

CMS Mandate – Deadlines for Compliance

On December 28, 2021, CMS issued guidance on its Interim Final Rule.  Now that SCOTUS has upheld the mandate, covered employers must continue to prepare for compliance.  The guidance provides that covered health care providers must demonstrate the following, by the following deadlines, to be deemed in compliance with the CMS Vaccine Mandate:

I.  By January 27, 2022:

  • Policies and procedures are developed and implemented for ensuring all facility staff are vaccinated or received an exemption, 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 have been identified as having a temporary delay as recommended by the CDC (a delay may be necessary if a staff member has recently had COVID-19 or for other medical reasons).

If less than 100% of all staff meet the above criteria, the facility is non-compliant under the rule. A facility that is above 80% and has a plan to achieve a 100% compliance rate within 60 days would not be subject to additional enforcement action.

II.  By February 28, 2022:

  • Policies and procedures are developed and implemented for ensuring all facility staff are vaccinated or received an exemption, 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.

If a provider does not meet the above criteria but can show that more than 90% of its staff are vaccinated or received an exemption or notice of delay and there is a plan to achieve a 100% compliance rate by March 28, 2022, then the provider will not be subject to additional enforcement actions at this time.

III.  By March 28, 2022:

Providers must maintain compliance with the 100% standard to be deemed in compliance with the CMS Vaccine Mandate.  At this time, CMS is not considering a booster shot to be necessary to have completed the vaccine series.

There is also provider-specific guidance that can be accessed here.

Takeaways:

  • All employers receiving federal funding via Medicare or Medicaid must comply with the CMS vaccine mandate.
  • Employers covered under the OSHA ETS vaccine or test mandate presently need not comply; however, the ultimate outcome of the OSHA ETS has to be determined.  For now, the court case returns to the Sixth Circuit for further review. In the meantime, employers may voluntarily implement and enforce their own vaccine mandates or vaccine/mask/test options, subject to federal, state, or local law. 
  • The status of President Biden’s Executive Order mandating vaccines for covered employees of federal government contractors is presently unclear; currently, the order is blocked pending further appeal.

Please contact us to help determine the best course of action for your company.

For more information about these issues and other employment concerns, contact Cori B. SchreiderMelissa Calhoon Jones, or any member of the employment law group.

This has been prepared by Tydings for informational purposes only and does not constitute legal advice.