Update: CMS recently modified compliance deadlines for facilities previously subject to the injunctions lifted by the Supreme Court. Those facilities must now comply with phase 1 of the CMS rule by February 13, 2022 and phase 2 by March 15, 2022. In addition, CMS has instructed surveyors to avoid enforcement and implementation of the mandate in Texas, where the CMS rule is still enjoined.

The Supreme Court issued opinions on both the request to stay the Occupational Safety and Health Administration (OSHA) vaccine mandate and the government’s request to lift the injunction of the Centers for Medicare & Medicaid Services (CMS) mandate six days after hearing expedited arguments.

1. OSHA Vaccine Mandate.

In a 6-3 per curiam decision, the Supreme Court on Jan. 13 stayed enforcement of the OSHA vaccine mandate pending review in the Sixth Circuit, holding petitioners are likely to prevail on the merits that OSHA lacked the authority to enact the mandate that broadly regulates public health. The Court’s opinion emphasized that Congress granted OSHA regulatory powers to set “occupational” safety standards for employees — not enact broad public health measures. Here, OSHA requires 84 million Americans to either vaccinate or participate in a weekly testing protocol simply because they work for an employer with more than 100 employees and not because of any specific health risk unique to the workplace (such as researchers working in the presence of the COVID-19 virus or workers in particularly crowded or cramped environments).

While recognizing COVID-19 presents a universal risk to all individuals, including while individuals are present at work, the Court rejected OSHA’s argument that COVID-19 is an occupational hazard subject to OSHA’s regulatory authority. In fact, the Court highlighted the absence of Congressional authority for the mandate, including the Senate’s majority vote actually disapproving of the regulation on Dec. 8, 2021.

At bottom, the vaccine mandate impermissibly took on a general public health measure and not an occupational safety or health standard. The Court stayed the vaccine mandate pending the Sixth Circuit’s disposition of the petitions for review and the disposal of any timely sought writs of certiorari to the Supreme Court.

Justice Neil Gorsuch, in a concurring opinion joined by Justices Clarence Thomas and Samuel Alito, wrote separately to stress the Court is tasked with resolving who in our constitutional system has the power to act. While the Court is not a public health agency, the Court must resolve questions about who has the authority to enact laws. The concurring opinion concludes that the vaccine mandate is a clear attempt at a “work-around” of Congress’s failure to act or grant OSHA the authority to enact sweeping standards of workers’ lives outside the workplace, which OSHA itself conceded two years ago.

In a strongly worded dissent, Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan write that “[t]oday, we are not wise.” According to the dissent, the Court “seriously misapplies the applicable legal standards” . . . and “stymies the Federal Government’s ability to counter the unparalleled threat that COVID-19 poses to our Nation’s workers.” The dissent emphasizes that the Court should defer to OSHA, which has determined that the mandate is “necessary” to prevent a “grave danger” from the “new hazard” and “physically harmful agent” of COVID-19.

Where does this leave employers? OSHA’s Jan. 10 deadline to have a plan in effect with respect to vaccination and testing and Feb. 9 deadline to begin testing are no longer applicable. Employers, of course, remain free to implement or continue with safety protocols they deem necessary and consistent with state or local law. But until further action from the Sixth Circuit, and/or additional action from OSHA, the vaccine mandate imposes no obligation on employers.

2. CMS Mandate.

In a 5-4 decision, the Supreme Court also lifted the injunctions on the CMS mandate, which requires vaccination for healthcare workers. The CMS rules apply to Medicare- and Medicaid-certified providers and suppliers. In its opinion, the Court stated that CMS has broad authority to condition facilities’ participation in the federal programs that CMS “finds necessary in the interest of the health and safety of individuals who are furnished services.” The Court also noted that facilities wishing to participate in Medicare and Medicaid have always been obligated to satisfy various conditions addressing the safe and effective provision of healthcare, as well as the qualifications and duties of healthcare workers.

The Court acknowledged that the vaccine mandate goes further than what has been done in the past, but stated that there has never before been a need to address an infection problem of this scale and scope. Further, the Court emphasized that vaccination requirements are common and that healthcare workers around the country are ordinarily required to be vaccinated for diseases such as hepatitis B, influenza, measles, mumps and rubella. The Court also found that the rule was not arbitrary or capricious and that CMS had good cause to delay the notice and comment period. The Court’s decision stayed the lower court preliminary injunctions enjoining the enforcement of the CMS mandate but did not rule on the merits.

Given this, facilities covered by the CMS rule must take steps to comply with phase 1 of the mandate by Jan. 27, 2022, and phase 2 by Feb. 28, 2022.