RBS News

Written By: Evelyn P. Schonberg | 2021-12-27

Supreme Court to Rule on the OSHA ETS and CMS Healthcare Worker Mandates

In the evening of December 22, 2021, the U.S. Supreme Court announced it will hear arguments on two of the Biden administration’s workplace vaccine mandates – the OSHA Emergency Temporary Standard applicable to employers with 100 or more employees (OSHA ETS Mandate) and the Center for Medicare & Medicaid Services Healthcare Worker Vaccine Mandate (CMS Mandate).  
Does This Mean that Employers Can Wait to Comply until after the Rulings?
Yes to the CMS Mandate but no to the OSHA ETS Mandate.
As of the writing of this Client Alert, CMS continues to suspend activities related to implementation and enforcement of its mandate “pending further developments.”  However, healthcare employers should continue to determine and then communicate policies that may need to be implemented in the event the CMS Mandate is reinstated, such as vaccine requirements and the process for requesting exemptions.
OSHA, on the other hand, states that it will begin enforcing the OSHA ETS Mandate on January 10, 2022 but will not issue citations for the testing requirements until February 9, 2022. Although motions have been filed requesting the Court to stay the ETS pending its ruling, the Court has so far declined to do so.
When is the Supreme Court Expected to Issue a Ruling?
Oral arguments have been scheduled for January 7, 2022 for both the ETS and CMS mandates.  In typical Supreme Court cases, rulings are issued months after oral argument. In this case, the hope is that rulings will issue much quicker, but it will still most likely be after the January 10, 2022 date that OSHA has announced it will begin enforcement of its ETS mandate.     
What is the status of the Federal Contractor Executive Order?
Unfortunately, this third federal mandate will not be heard on January 7.  The Justice Department recently filed its notices of appeal of injunctions that have been issued by courts in Kentucky and Georgia.  For now, the Federal Contractor mandate remains stayed in Ohio and other states pending action by the Supreme Court.
What if My Business is Subjected to both the OSHA ETS Mandate and the Federal Contractor Mandate and/or the CMS Mandate?
The OSHA ETS Mandate does not apply to workplaces subjected to the Federal Contractor Mandate and therefore, for at least the time being, those businesses may opt to take a wait-and-see approach or exercise caution by establishing a policy on vaccines, determine how to evaluate religious and medical accommodations, etc. However, federal contractors who are covered by both the OSHA ETS and Federal Contractor Mandate must exercise care if the business has a workforce that is only partially covered by the Federal Contractor mandate. The portion of the workforce not covered will be subjected to the OSHA ETS.

The OSHA ETS Mandate did not exempt healthcare employers covered by both the OSHA ETS Mandate and the CMS Mandate.  Therefore, employers subject to both mandates should take action to prepare to comply with the OSHA ETS mandate as discussed below. 
What To Do Going Forward?
Based on the Court’s oral argument occurring a mere three days before OSHA will begin enforcing its ETS mandate, employers with 100 or more employees must begin to invest the time and resources into preparing their compliance efforts.  As discussed in "The OSHA COVID-19 ETS Rule is Reinstated", employers who have not at least prepared their policies and otherwise acted in “good faith” by January 10 could receive OSHA citations. Testing does not need to begin until February 9, so that provides much needed breathing room.
Once an employer decides on the particulars of the policy required by the ETS, it must then update the vaccine status information among its workforce (if this has not been done already) and begin preparing for the testing portion of the ETS that will begin on February 9.
As you are working on developing your vaccine policy to comply with the ETS, please contact me or your RBS attorney for further information.

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