Earlier yesterday (January 13, 2022), the U.S. Supreme Court ruled that the vaccine mandate applicable to healthcare providers that are Medicare or Medicaid certified may proceed. 

As we wrote in our prior Alert, the Centers for Medicare & Medicaid Services (CMS) issued the mandate on November 5, 2021 as an interim final rule (the “CMS Rule”). Unlike the OSHA vaccine mandate, which the Supreme Court blocked yesterday, the CMS Rule does not include a testing and masking option (though employers must still consider medical and religious vaccine exemption requests). 

The case came before the U.S. Supreme Court after the CMS Rule was challenged in multiple jurisdictions. Two separate U.S. District Courts previously issued injunctions temporarily blocking the rule, and those cases are still pending. The Supreme Court’s ruling did not decide the merits of those legal challenges to the CMS Rule, but instead allows the rule to remain in effect while those cases are litigated. 

What employers must do: In view of the Supreme Court’s ruling, employers covered by the CMS Rule must take steps to come into compliance with the vaccination and record-keeping requirements covered here. In a memorandum issued on December 28, 2021, CMS announced that it would begin enforcement within 30 days of that memorandum.