U.S. Supreme Court Rules on OSHA and CMS Mandates

Shumaker, Loop & Kendrick, LLP

On January 13th, the Supreme Court issued a ruling on the Occupational Safety and Health Administration’s (OSHA) 100+ employee vaccine mandate. A majority of the Court found that the applicants challenging the rule were likely to prevail and stayed enforcement of the rule while the matter is litigated. Based upon this ruling, and the fact that an Emergency Temporary Standard (ETS) can only remain in effect for six months, it is almost certain that OSHA’s 100+ employee vaccine mandate will never be implemented as written. For now, employers can disregard the ETS, but should keep abreast of what actions OSHA takes in response to the Court’s ruling.

Also on January 13th, a divided U.S. Supreme Court issued a ruling on the Centers for Medicare & Medicaid Services (CMS) vaccine mandate rule. A majority of the Court found that the Health and Human Services Secretary had the authority to issue the vaccine mandate rule. In addition,  the majority of the Court stated that the Secretary has the ability to promulgate rules related to infection control. The Court also found that the rule was not arbitrary or capricious. Finally, the Court stayed the injunctions granted by the lower courts. For those Medicare providers covered by the vaccine mandate rule, you must be aware that the government can, therefore, enforce the CMS vaccine mandate in all states. This means that by January 27th, covered providers will need to have appropriate policies in place and will need to have covered staff and others vaccinated with one dose or granted an exemption. All covered staff and others will need to be fully vaccinated or granted an exemption by February 28, 2022.

While we are hopeful that CMS may review the pending deadlines, we cannot assume that those dates will be changed. These rulings are not the final determinations on these particular litigations, but we believe the rulings are a signal as to where the litigations will end as a terminus.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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