January 14, 2022

Supreme Court Blocks Vaccinate-or-Test Mandate, Allows Healthcare Worker Mandate

Argentum Advocates

The Supreme Court issued rulings today in both the OSHA Emergency Temporary Standard (ETS) and the CMS Interim Final Rule (IFR) vaccine mandates.

The Court ruled 6-3 to block enforcement of the OSHA ETS for larger employers, returning the mandate’s legal challenges to the lower courts to decide on the merits. This means that the mandate could eventually come before the Supreme Court again, but today’s decision indicates that the Court would likely rule against the ETS again should that happen. Today’s ruling notes that, “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”

The Court ruled 5-4 to allow the CMS IFR for healthcare workers to proceed (Chief Justice John Roberts and Associate Justice Brett Kavanaugh joined the Court’s three liberals, Stephen Breyer, Sonia Sotomayor, and Elena Kagan). The legal challenges to the CMS IFR will also return to the lower courts to decide on the merits, but today’s decision indicates the Court would likely rule favorably for the CMS IFR should the challenges reach the Court again. As a reminder, this mandate applies only to Medicare and Medicaid-certified facilities, and does not apply to assisted living facilities, including providers of Home and Community-based Services. CMS issued clarifying guidance to the rule noting that it “does not have regulatory authority over care settings such as Assisted Living Facilities.” Argentum submitted comments in response to the IFR last week reiterating the lack of authority by CMS to regulate assisted living.

Finally, as an additional reminder, the OSHA Healthcare ETS issued in June 2021 was formally withdrawn by the agency at the end of December, although COVID-19 log and reporting provisions remain in effect. OSHA announced that it intends to issue a final standard for healthcare workers relating to COVID-19 hazards, along with broader infectious disease rulemaking.

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