OSHA’s Emergency Temporary Standard
On November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) requiring most employers with 100 or more employees to either require employees to be fully vaccinated or provide proof of a negative COVID-19 test result on a weekly basis. We discussed OSHA’s ETS in more detail in an earlier blog post here. After the Fifth Circuit Court of Appeals issued and then reaffirmed a stay preventing enforcement of the ETS nationwide, that case and numerous similar cases were consolidated in the Sixth Circuit, which was selected in accordance with federal law to hear and decide the cases on their merits (see our blog on that here). The Sixth Circuit then dissolved the stay, effectively allowing the ETS to go into effect. As expected, however, that decision was immediately appealed to the U.S. Supreme Court, which heard the case on an expedited basis. On January 13, 2022, a divided Court in a 6-3 ruling reinstated the stay, holding that OSHA had exceeded its statutory authority in issuing the ETS.
The Supreme Court’s ruling meant that the case would return to the Sixth Circuit for a decision “on the merits.” Technically, the Court considered only whether the ETS should be allowed to go into effect until the Sixth Circuit renders its decision. But the Court sent a clear signal to the Sixth Circuit of its views on the ultimate issue, as the six Justices in the majority concluded that OSHA is authorized to regulate work-related risks and set occupational health standards, but it lacks authority to issue “a broad public health regulation of this kind.”
Then, on January 25, 2022, OSHA broke its silence by announcing that it was withdrawing the ETS in light of the Supreme Court’s ruling. As some commentators have noted, OSHA’s action was likely strategic at least in part, as it avoids the possibility that the Sixth Circuit, in ruling on the merits, or the Supreme Court on appeal from a merits ruling, might issue a decision severely limiting the reach of existing or future OSHA regulations. As OSHA explained, while 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. The agency is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.” Accordingly, while the ETS is gone for now, we may see bits and pieces return as OSHA presses forward with development of a (presumably more narrowly drawn) permanent COVID-19 standard.
The CMS Rule
Also before the Supreme Court was the Centers for Medicare & Medicaid Services’ (CMS) proposed rule requiring that employees of most facilities that participate in Medicare or Medicaid be vaccinated. The CMS rule, which applies to more than 17 million workers, provides for medical and religious exemptions, but does not authorize a “test out” alternative. It covers employees at (among other facilities) ambulatory surgery centers, community mental health centers, home health agencies, hospices, hospitals, and long-term care facilities, but does not apply to assisted living facilities, group homes, and physicians’ offices.
The Supreme Court, by a 5-4 vote, upheld the CMS rule, finding that the Secretary of Health and Human Services acted within his statutory authority in conditioning participation in the Medicare and Medicaid programs on compliance with a rule that he had determined was necessary to protect patient health and safety. As the Court observed (borrowing language from the Eleventh Circuit Court of Appeals), it would be the “very opposite of efficient and effective administration for a facility that is supposed to make people well to make them sick with COVID-19.”
As a result of this decision, the CMS rule – which had been enjoined in 25 states – will take effect nationwide. CMS has issued interpretive guidance establishing compliance deadlines for facilities in those states (except Texas, which is a special case). For the states where the CMS rule had not been enjoined, the guidance issued December 28 remains in effect.
The Federal Contractor Mandate
On September 9, 2021, President Biden issued an Executive Order requiring most federal contractors and subcontractors to implement various measures designed to protect employees against COVID-19, including a vaccine mandate with no testing alternative. The mandate was challenged in multiple federal district courts, several of which issued injunctions barring enforcement of the mandate in the states where the courts were located. One district court in Georgia, however, enjoined the mandate nationwide. (Interestingly, that court recently issued a new order clarifying that the injunction applies only to the vaccine mandate for federal contractors, and not to other aspects of the Executive Order, including provisions for masking and social distancing.)
Although the federal government is appealing the district court rulings, it is unclear when those appeals might be heard and decided. Accordingly, the federal contractor mandate remains in limbo and cannot be enforced by the federal government while the various injunctions remain in place.
Conclusion
In light of the above, it is important for employers (other than health care facilities covered by the CMS rule) to remember that they have substantial discretion under federal law to voluntarily impose mandatory COVID-19 vaccination policies (with or without testing alternatives, and always with accommodations available for employees with medical conditions or with sincerely held religious objections), but they are not required to do so. These court decisions do not impact the legality of voluntarily adopted mandates, and numerous federal courts have upheld their validity. (Some states, however – notably Texas and Florida – have restricted such mandates.)
Employers may also be subject to state law requirements. In Connecticut, all state employees, as well as early childhood care providers and pre-K through 12th grade school staff and teachers, must be vaccinated. For some, but not all, of these employees, there are testing alternatives.
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