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  • Ryan T. Biesenbach

U.S. Supreme Court Blocks OSHA’s Vaccine-or-Test Rule

On January 13, 2022, the United States Supreme Court released decisions concerning the vaccine-or-test rule on U.S. businesses with at least 100 employees promulgated by the Occupational Safety and Health Administration (“OSHA”) and the rule requiring vaccination for healthcare employees at facilities that participate in Medicare and Medicaid programs. In the decisions, justices blocked the OSHA mandate but upheld the CMS requirements.


The OSHA Mandate


The OSHA mandate would have applied to employers with 100 or more employees and required employees to receive a complete course of COVID-19 vaccinations or to engage in weekly testing at the employee’s expense in order to enter the workplace. The rule allowed for narrow exceptions for those who exclusively work remotely, work outdoors or had a legitimate medical or religious reason for refusing vaccination. More than 80 million people would have been affected.


“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,” the court wrote in an unsigned opinion, split 6-3. “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 wrote. Liberal Justices Breyer, Sotomayor and Kagan dissented, writing that the majority has usurped the power of Congress, the president and OSHA without legal basis. “In the face of a still-raging pandemic, this Court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed,” the dissent opined. “As disease and death continue to mount, this Court tells the agency that it cannot respond in the most effective way possible. Without legal basis, the Court usurps a decision that rightfully belongs to others. It undercuts the capacity of the responsible federal officials, acting well within the scope of their authority, to protect American workers from grave danger,” they wrote.


The CMS Mandate


In a separate, simultaneously released ruling on the CMS’s vaccination rules for health care workers at hospitals, nursing homes and other facilities that participate in Medicare and Medicaid programs, a 5-4 majority sided with the Biden administration. “We agree with the Government that the [Health and Human Services] Secretary’s rule falls within the authorities that Congress has conferred upon him,” said the majority, writing that the rule “fits neatly within the language of the statute.” “After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm,” the majority opinion read.


According to guidance released by CMS on January 3, 2022, facilities are compliant with the mandate if, by January 27, 2022, they have established policies and procedures for ensuring that eligible staff are vaccinated, and all staff have received at least one dose, have a pending request for an exemption, have been granted a qualifying exemption or have been identified as having a temporary delay as recommended by the CDC. By February 28, 2022, eligible staff must have completed the vaccination series (one dose of Johnson & Johnson or two doses of Pfizer or Moderna), have been granted an exemption or have been identified as having a temporary delay as recommended by the CDC.


CMS said federal, state, accreditation organizations and CMS-contracted surveyors will begin surveying for compliance 30 days after publication of the guidance. Facilities that fail to maintain full compliance within 90 days after publication of the guidance may be subject to enforcement action, with termination of participation from the Medicare and Medicaid programs.


If you have any questions regarding this article, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Ryan T. Biesenbach, the author of this piece, here, or at (585) 258-2865.

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