On Thursday, January 13, 2022, in a 6-3 decision, the U.S. Supreme Court granted a stay of the Sixth Circuit Court of Appeals' recent decision affirming the validity of OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard ("ETS"). This means the ETS is currently stayed nationwide and is not enforceable. Had the Supreme Court ruled otherwise, the ETS would have applied to all private sector employors with 100 or more employees; OSHA estimated the ETS would have affected more than 84 million workers. This is not the final decision by the Supreme Court on this question, but the Court's final decision will likely be the same.
However, in a separate opinion released yesterday, the Supreme Court upheld the validity of the Centers for Medicare & Medicaid ("CMS" COVID-19 Health Care Staff Vaccination Rule ("CMS rule").
Why did the Supreme Court reach opposite conclusions?
In striking down the OSHA ETS, the Court explained that, "permitting OSHA to regulate the hazards of daily life...would significantly expand OSHA's regulatory authority without clear congressional authorization." The Court reasoned that the Occupational Safety and Health Act of 1970 does not support the notion that Congress intended to authorize OSHA to require vaccination or weekly testing in response to the COVID-10 threat to public health. The Court concluded that in the absence of such Congressional intent, OSHA overstepped its authority.
However, in a separate 5-4 decision, the Supreme Court granted a stay of previous lower court injunctions preventing enforcement of the CMS Rule. This decision means the CMS Rule is now in effect and enforceable. The Court did so based on its conclusion that the CMS Rule "fits neatly" within the spending power of Congress to impose conditions on participation in the Medicare/Medicaid program. The Court explained: "Congress authorized [CMS] to promulgate, as a condition of a facility's participation in the interest of the health and safety of individuals who are furnished services in the institution....[CMS] has established long lists of detailed conditions with which facilities must comply to be eligible to receive Medicare and Medicaid funds...[including] a requirement that...providers maintain and enforce an infection prevention and control program designed...to help prevent the development and transmission of communicable diseases and infections."
Because the Court found that Congress intended to authorize CMS to impose such conditions, including required "infection prevention and control programs," the Court upheld the CMS Rule. This too is not the Supreme Court's final decision on this question, but the Court's final decision will likely be the same.
The CMS Rule requires covered health care workers to receive their first vaccination does by January 27, 2022, and their second dose (if applicable) by February 28, 2022. CMS previously announced, however, that it will grant 30-day and 60-day grace periods to covered health care employers that have 80% of their staff vaccinated by the January 27 deadline.
Please contact a member of our Labor & Employment Law Practice Group if you have questions.