Update – 1.25.22:
The Biden administration has officially announced its intent to withdraw COVID-19 testing and vaccine requirements targeted at large businesses with 100 or more employees in the wake of the Supreme Court’s recent block of the regulations less than two weeks ago. Affirming the administration’s intent, OSHA stated that it will withdraw the rules as well effective Wednesday, January 26, 2022.
OSHA concluded that although it is “withdrawing the vaccination and testing ETS as an enforceable emergency temporary standard, the agency is not withdrawing the ETS as a proposed rule.” With that being said, it is entirely possible that we see another iteration of the ETS at a later date.
As noted in this article, the Supreme Court voted to uphold the CMS Interim Final Rule, so that aspect of the Biden administration’s mandate is still in effect and unaltered by the withdrawal.
In a 6-3 majority decision issued on January 13, 2022, the U.S. Supreme Court (SCOTUS) blocked President Biden’s intended vaccine or test mandate for companies with 100 or more employees, citing overreach on the part of the Occupational Health and Safety Administration (OSHA). Although, in a separate ruling, the Court did permit a vaccine mandate (“CMS Interim Final Rule”) to be put in place specifically for employees working for healthcare facilities that receive federal funding for Medicare or Medicaid.
The Court’s OSHA-related ruling stems from the November 4, 2021 Emergency Temporary Standard (ETS) that was issued for employers with 100 or more employees, which mandated that employers implement standards to ensure that their workforce is either fully vaccinated against COVID-19 or, alternatively, that employees submit to weekly testing prior to entering an employer’s physical office space.
At the time of the ETS’ announcement, we anticipated numerous legal challenges would result. As expected, just two days after the release of the ETS, we were met with the first of such challenges via the 5th U.S. Circuit Court of Appeals when a stay was issued, temporarily stalling the President’s efforts to require employers with 100 or more employees to comply with the mandate. Numerous other states followed that lead and submitted legal challenges of their own as well. On December 17, 2021, the 6th Circuit then reinstated the ETS, with OSHA issuing fresh enforcement deadlines at that time.
This brings us up to January 13, 2022, when the SCOTUS ruled, with Justices Breyer, Kagan, and Sotomayor dissenting, that OSHA overstepped its authority in the formulation of their ETS. The Court went on to state that OSHA has no power to regulate “the everyday risk of contracting COVID-19 that all face”, once again bringing the ETS to a screeching halt. Employers that were originally subject to the upcoming enforcement deadlines will no longer be legally required to comply with those requirements. As a result, it will now be up to States and individual employers to determine whether to enforce a vaccine mandate or policy.
In a statement following the SCOTUS’ ruling, the President admonished the Court for failing to enforce the ETS, while praising the decision to uphold the requirement for healthcare workers.
CMS Interim Final Rule
As mentioned above, the Court voted to uphold the applicability of the CMS Interim Final Rule, which implemented a vaccine mandate for employees of Medicare and Medicaid certified facilities. The Court’s decision came down to an interpretation of the broad powers of CMS to condition participation in the Medicare and Medicaid programs on requirements that are necessary for the health and safety of individuals who provide services in healthcare facilities. With the CMS Interim Final Rule being upheld, employers should continue any implementation efforts in that regard.
Prior Guidance and Links:
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