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By Abby H. Natelson, Esq.

On January 13, 2022, the Supreme Court issued decisions affecting two federal vaccine mandates:  

  1. First, the Supreme Court stayed enforcement of the Occupational Safety and Health Administration (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) – the Biden Administration’s rule for private businesses with at least 100 employees requiring that workers either be vaccinated or get weekly verified COVID-19 tests, among other requirements. (SEE OUR PRIOR EALERTS ON THE ETS – HERE AND HERE]. The Supreme Court determined that the challenges to the ETS likely would succeed on the merits of their claim that OSHA did not have the power under its governing statute to impose a vaccine requirement where COVID-19 is a public health concern that is “untethered, in any causal sense, from the workplace.” Thus, the Supreme Court reinstated the temporary injunction blocking OSHA from enforcing the ETS until the Sixth Circuit Court of Appeals decides whether the rule is valid. The Supreme Court’s decision can be found here.
  2. Second, the Supreme Court allowed enforcement of the vaccine mandate issued by the Centers for Medicare & Medicaid Services (“CMS”) for health care workers at hospitals, nursing homes and other facilities that receive Medicare and Medicaid payments from the federal government. The Supreme Court allowed this rule because Congress had authorized the agency to take steps to protect the health and safety of Medicaid and Medicare recipients. The Supreme Court’s decision can be found here.

What does this mean for the ETS?

The Sixth Circuit will now proceed with its consideration of the merits of OSHA’s authority to issue the ETS. However, even a favorable ruling would face a challenge again before the Supreme Court.    The ETS is a six-month rule set to expire in May, after which it must be replaced by a permanent standard. If the government decides to continue pursuing enforcement, we may see OSHA publish a formal regulation by the ETS expiration date.

What does this mean for employers?

At this time, employers are not required to comply with the ETS, including the January 10, 2022 vaccination deadline or the February 9, 2022 testing compliance deadline. However, employers should keep in mind that additional state and local laws may continue to impact workplaces. Additionally, employers should also follow OSHA and CDC guidance for protecting employees from COVID-19 hazards in the workplace.

The ETS requirements may be reinstated if the Sixth Court issues a favorable decision or if OSHA issues a permanent regulation.  

Meanwhile, the CMS vaccine mandate requiring that covered employers have 100% of workers vaccinated to remain eligible for Medicare and Medicaid payments will go into effect. Under this mandate, employees must receive one vaccination by January 27, 2022 and a second shot (if applicable) by February 28, 2022. 

The CMS has provided grace periods for enforcement where employers have pursued vaccination plans. Specifically, for employers with a vaccination rate at or above 80% by the CMS deadlines, CMS will not pursue enforcement measures if (1) the employer has a plan to achieve a 100% rate within 60 days, and (2) at the 60-day mark, if the employer has a vaccination rate at or above 90% and the employer has a plan to achieve a 100% rate within another 30 days.

NFC’s COVID-19 Response Team will continue to keep you apprised of developments relating to the ETS and OSHA. If you have any questions relating to COVID-19 policies or would like guidance relating to any other COVID-19 issue, please feel free to reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100.


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