By: Fred Preis, Rachael Jeanfreau, and Philip Giorlando
Supreme Court Stays OSHA’s Emergency Temporary Standard
Employers across the country are likely feeling the whiplash effects of the ongoing litigation of the OSHA mandate—which has now been stayed again. On Thursday, January 13, 2022, the U.S. Supreme Court stayed OSHA’s Emergency Temporary Standard (“ETS”), preventing it from remaining in effect, finding that OSHA is not likely to succeed on the merits of its case and stating that OSHA overstepped the authority provided by Congress. This ruling comes after the U.S. Fifth Circuit Court of Appeals initially stayed the OSHA mandate, and the U.S. Sixth Circuit Court of Appeals lifted the Fifth Circuit’s stay. Our previous articles addressing these decisions can be found here and here.
Calling the ETS “a blunt instrument” that does not distinguish between different industries and workplace environments, the majority opinion of the U.S. Supreme Court found that OSHA overstepped its authority. This is because Congress has only given OSHA the authority to address occupational hazards, not set broad public health measures across every industry. Importantly, the U.S. Supreme Court recognized that, unlike past OSHA workplace standards, vaccination cannot be undone at the end of the workday. The Court recognized that OSHA could create targeted regulations for particular workplaces where a special danger of COVID exists, such as laboratories researching COVID-19, and particularly crowded or cramped environments. The Court ruled that because OSHA’s ETS does not recognize a distinction between occupational risk and the general risk of COVID-19, it is more akin to a public health measure than an occupational standard, and is outside the scope of OSHA’s authority.
Following the Supreme Court’s ruling, the OSHA ETS is now before the Sixth Circuit Court of Appeals to determine whether OSHA properly enacted the ETS. Even though the Sixth Circuit Court of Appeals previously ruled in favor of the OSHA ETS, the U.S. Supreme Court— which has just explained all of the reasons why it thinks the OSHA ETS is wrong—will likely review any ruling by the Sixth Circuit. Only time will tell whether the Sixth Circuit continues its support of OSHA’s ETS or defers to the U.S. Supreme Court’s opinion.
Looking Ahead- What Should Employers Do?
The big issue for employers is how to proceed now. Many employers have started, stopped, and restarted COVID-19 vaccination policies based on OSHA’s ETS. What will likely follow is that each employer will determine how to proceed based on its circumstances and industry. Some employers will continue to enforce a COVID-19 vaccination and/or mask mandate because they agree with OSHA’s concerns regarding the spread of COVID in the workplace, whereas other employers will lift any COVID vaccination and masking policy that was previously in place only to comply with the ETS.
Because OSHA’s ETS may ultimately be rejected in court, employers need to be even more attentive to their State and local government mandates and orders, which will likely increase in number. Also, employers should pay close attention in the coming days and weeks to whether OSHA modifies its ETS in any way based on the Supreme Court’s opinion. Examples of different changes OSHA could implement include dropping the vaccination option and only enforcing a mask and testing mandate, which possibility was highlighted by the Supreme Court, and narrowing the focus of the mandate to only certain workplaces and industries more susceptible to the spread of COVID-19.
CMS’s Interim Final Rule is Back in Effect
On the same day that it stayed OSHA’s ETS, the Supreme Court lifted a stay over the Center for Medicare and Medicaid Services Interim Final Rule (“CMS Mandate”) which mandates that certain healthcare providers ensure that their staff is vaccinated against COVID-19. The Court lifted the stay because CMS is given the authority to implement regulations for the protection of the health and safety of patients, and the Court found that a vaccine mandate fit in that authority. Specifically, the Supreme Court opinion found that CMS acted within its authority in enacting its mandate because Congress explicitly gave CMS authority to impose restrictions on the receipt of Medicaid and Medicare funds that it finds necessary for the health and safety of patients. Noting that COVID-19 is highly contagious and deadly, especially to Medicare and Medicaid patients, the Court found that CMS’s research and analysis supported that a vaccine mandate would substantially reduce the likelihood that healthcare workers would spread COVID-19 to patients. The Court also found this vaccine mandate no different from longstanding State vaccination requirements for healthcare workers against hepatitis B, influenza, and measles, which CMS has supported. Finally, the Court noted that healthcare workers and public health organizations overwhelmingly support the CMS Mandate.
The CMS Mandate now returns to the lower courts to determine whether CMS properly issued its mandate. Much like the OSHA ETS, the Supreme Court has spelled out the likely outcome, and so the lower courts will likely uphold the CMS Mandate.
Healthcare Providers Should Finalize and Implement Their COVID-19 Vaccination Policies Now
Many healthcare providers covered by CMS have already fully implemented their COVID-19 vaccination policies. Several in Louisiana have already done so and have proceeded to terminate those employees who refused to comply with the policy.
For those covered healthcare providers who have yet to implement COVID-19 vaccination mandates in accordance with the CMS Mandate, now is the time to finalize and implement a policy in compliance with the CMS Mandate, which will begin to be enforced as early as January 27, 2022, in some States.
Litigation over the OSHA ETS and CMS Mandate will likely continue as employers, employees, and government agencies continue to challenge each other over the enforcement, or lack thereof, of vaccine and masking mandates. These cases will only continue to create uncertainty until a final ruling is made by the U.S. Supreme Court on the OSHA ETS and CMS Mandate, which will likely be a long time coming. Employers should continue to monitor these cases and how Federal, State, and local governments respond to the U.S. Supreme Court’s rulings.
