This afternoon, the Supreme Court of the United States issued rulings on the requests for an emergency stay of OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard ("Vaccinate or Test Weekly") and the Interim Final Rule issued by Center for Medicare & Medicaid Services that mandates the vaccination against COVID-19 of health care staff employed by Medicare and Medicaid-certified providers and suppliers. As predicted by many Court observers and pundits following the arguments on January 7, the Court ruled in favor of those seeking to stay the OSHA ETS and against those supporting the Fifth Circuit stay of the CMS rule.
OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard. The Court's ruling today means that enforcement of the OSHA ETS now has been stayed and employers that were subject to the ETS (those with 100 or more employees) are no longer subject to fines for failing to comply with the vaccination, testing, or face covering requirements of the ETS. The underlying petitions for review in the United States Court of Appeals for the Sixth Circuit remain open. Given the six-month statutory limit on duration of emergency temporary standards, it is an open question as to whether the existing ETS will ever return.
CMS Interim Final Rule. The Court's decision to lift the preliminary injunction that was applicable in twenty-five states (including West Virginia, Kentucky, Ohio, and South Carolina) means that all covered providers and suppliers are now subject to compliance with the CMS vaccination mandate for health care staff at covered providers and suppliers. CMS previously had exercised its enforcement discretion to delay implementation in states not covered by the preliminary injunction, including Virginia, Pennsylvania, and North Carolina. However, new guidance issued by CMS on December 28, 2021 stated that CMS would begin monitoring and enforcement in the states not subject to the preliminary injunctions on modified deadlines for Phase 1 (January 27, 2022) and Phase 2 (February 28, 2022).
In light of the Court's ruling today, all covered facilities regardless of location are now subject to compliance with the CMS Interim Final Rule.
As is stands today, staff at all covered health care facilities must have received at least the Phase 1 first dose of a primary series or a single dose COVID-19 vaccine prior to providing any care, treatment or services by January 27, 2022. Staff at covered facilities, unless exempted or subject to a temporary delay, must complete the Phase 2 primary vaccination series by February 28, 2022.