Today, the Supreme Court issued decisions in the COVID mandate cases that have had employers across the country on the edge of their seats.
In a per curiam 6-3 decision, the Court stayed the OSHA Emergency Temporary Standard that required all employers with 100 or more employees to require COVID vaccination or weekly testing. The Court found that OSHA had exceeded its rule-making authority and that Congress -- not an administrative agency -- would have to pass legislation specifically authorizing the vaccine or test requirement: “The Act empowers the Secretary to set workplace safety standards, not broad public health measures.” The decision effectively ends the federal government’s efforts to mitigate through regulation the spread of COVID in private workplaces with the largest number of workers.
In contrast, the Court -- relying upon the Spending Clause -- determined that CMS was legally authorized to enact the Interim Final Rule requiring healthcare employers in twenty-one segments of the industry (including Ambulatory Surgery Centers, End-Stage Renal Disease Facilities, Home Health Agencies, Hospices, Hospitals, Psychiatric Residential Treatment Facilities and Long Term Care facilities), as a condition of participation in Medicare and Medicaid, to require all employees to be fully vaccinated against COVID-19. The five-member majority found that the CMS IFR falls within the Secretary of Health and Human Service’s authority and that the IFR was not arbitrary and capricious.
Currently, the deadline for the CMS IFR’s Phase 1 implementation (first dose) is January 27 and the deadline for Phase 2 implementation (second dose) is February 28. A covered entity must have a process in place documenting and tracking staff vaccinations as well as those employees who have been exempted from the vaccination requirement for religious or medical reasons. According to the QSO issued December 28, CMS plans to exercise enforcement discretion in the first 90 days, noting that any “facility with a staff vaccination rate above 80% with a specific plan to achieve a 100% rate within 60 days would not be subject to additional enforcement action.”
Notwithstanding these two decisions, employers remain free to implement their own mandatory vaccination and/or testing policies (subject to compliance with applicable federal and state law - 13 states currently have some form of prohibitions on vaccine mandates in the workplace) but whether to do so requires a delicate balance of competing interests. And, of course, states likewise may implement their own COVID-19 mitigation efforts, including vaccine or testing mandates (currently, 25 states require vaccination for employees in various industries though predominantly healthcare).
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