RBS News

Written By: Evelyn P. Schonberg | 2022-01-14

U.S. Supreme Court Blocks OSHA COVID-19 ETS Rule And Upholds Health Care Worker Vaccine Mandate

The OSHA COVID-19 ETS Rule is Blocked
On January 13, 2022, the U.S. Supreme Court issued a ruling that blocks OSHA’s COVID-19 Emergency Temporary Standard from going into effect.  By a vote of 6 to 3, the Court stayed the mandate pending review by the Sixth Circuit Court of Appeals. The basis upon which the Court struck down the OSHA ETS Rule was that OSHA’s authority is limited to setting workplace safety standards, not to regulating “public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls into the latter category.”

What is the Effect of this Ruling?
Employers in Ohio with 100 or more employees are no longer subjected to the OSHA ETS Rule. However, the litigation is not over.  Due to procedural rules, the Supreme Court remanded the case back to the Sixth Circuit for a final decision.  Because the Supreme Court found that the plaintiffs are likely to be successful on the merits, it is extremely unlikely that the Sixth Circuit will ignore such findings. However, in the unlikely event the Sixth Circuit does ignores the Supreme Court’s findings, that decision will be appealed back to the Supreme Court where the OSHA ETS Rule will most likely again be ruled unlawful. 

How is OSHA Responding to the Supreme Court’s Ruling?
In its decision, the Supreme Court stated that OSHA does have authority to regulate occupation-specific risks related to COVID-19, such as researchers who work with the COVID-19 virus. OSHA is accepting comments on its COVID-19 ETS Rule until January 19, 2022. It is possible that OSHA could issue a narrower standard based upon the heightened risk in certain types of workplaces as instructed by the Supreme Court. However, such a new rule must be much narrower or else it too will be subject to litigation.  

What Does all of This Mean for Employers?
Given the stay, OSHA does not currently have a COVID-19 standard in place and therefore employers with 100 or more employees no longer need to enforce it. We will be continually on the lookout for future decisions and actions taken in court and by OSHA and reporting them to you as they develop. 

The CMS Health Care Worker Mandate is Allowed
In a 5-4 decision also issued on January 13, 2022, the Supreme Court held that the Centers for Medicare and Medicaid Services (CMS) health care worker vaccination rule was well within the authority delegated to it “to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety.” Finding that the fundamental principle of the medical profession is “first, do no harm,” the Court stated that the CMS Rule is consistent with that principle since it ensures that “providers take steps to avoid transmitting a dangerous virus to their patients.” 

The Court also recognized the long history of CMS in establishing detailed conditions with which health care facilities must comply in order to receive Medicare and Medicaid funds. Significantly, such conditions have included maintaining and enforcing an infection prevention and control program. Finally, unlike the OSHA ETS Rule, the Court found that the CMS Rule was not only legal, but “a straightforward and predicable example of the ‘health and safety’ regulations that Congress has authorized [CMS] to impose.”

What Does This Mean for Employers Covered by the CMS Rule?
All employers covered by the CMS Rule must begin to comply with its mandate by January 27, 2022.  In addition, CMS updated its CMS Rule which you can download by clicking here.  

Under the updated guidance, by January 27, 2022, all facilities covered by the CMS Rule must be able to show that more than 80% of covered staff have been vaccinated and that a plan exists to achieve 100% vaccination within 60 days. This does not apply to staff that have a pending exemption request and those whose vaccination was temporarily delayed per CDC recommendations. Also, policies and procedures must be enacted by January 27 to comply with the CMS Rule.

By February 28, 2022, covered facilities must ensure that 100% of covered staff are fully vaccinated, except those with a granted exemption request and those having a temporary delay in receiving the vaccination. However, if a facility has more than a 90% vaccination rate and has a plan to achieve a 100% staff vaccination rate by March 30, 2022, it will be exempted from an enforcement action.

More information on the CMS Rule can be found in our 11/12/21 article here. Any questions, concerns or requests for assistance in complying with CMS Rule should be directed to your attorney at RBS or to Lynn Schonberg.

Contact Us