The OSHA ETS Is Blocked But The CMS IFR Moves Forward

by Lana L. Rupprecht, Esq. - Director and Product Compliance Counsel

& Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel,

January 14, 2022

 

During our January 11 Quarterly Compliance Update we reported that the Supreme Court of the United States (SCOTUS) heard oral arguments on January 7 on two federal vaccination mandates. Specifically, SCOTUS was asked to determine whether the OSHA Emergency Temporary Standard (ETS) and the Interim Final Rule (IFR) issued by the Centers for Medicare and Medicaid Services (CMS) should be temporarily stayed (or stopped) pending further legal review.

On January 13, 2022, SCOTUS issued two decisions. It stayed the OSHA ETS but it lifted the injunctions on the CMS IFR so now, it may be enforced in all states. The two written opinions can be found here and are briefly discussed below.

OSHA ETS

• The OSHA ETS, which required private employers with 100 or more employees to implement vaccination or weekly testing requirements for their employees, is temporarily stayed and cannot be enforced by OSHA at this time.
• As we previously reported here, the ETS was issued by OSHA on November 5. Then, it was initially stayed by the 5^th Circuit Court Appeals as we reported here and here.
• After various cases challenging the ETS were consolidated before the 6^th Circuit Court of Appeals, the 6^th Circuit lifted the stay on December 17 and allowed the OSHA Rule to take effect as we reported here.
• Now, SCOTUS has again stayed the OSHA ETS. The 6^th Circuit Court of Appeals will be able to decide if the OSHA ETS should be enjoined permanently—and that decision is subject to review again—by SCOTUS.
• OSHA issued a statement in response to the January 13 decision stating, in part:

“We urge all employers to require workers to get vaccinated or tested weekly to most effectively fight this deadly virus in the workplace. Employers are responsible for the safety of their workers on the job, and OSHA has comprehensive COVID-19 guidance to help them uphold their obligation.

Regardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the Covid-19 National Emphasis Program and General Duty Clause.”

CMS IFR

• And then, the IFR, the government vaccination mandate issued by CMS may now be enforced in all 50 states.
• As a refresher, the IFR is applicable to Medicare and Medicaid certified providers and suppliers and their health care workers working in hospitals, nursing homes and other health care facilities. More background can be found here and here.
• SCOTUS concluded that the Secretary of Health and Human Services did not exceed statutory authority and stated, “in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID–19.”

What does this mean for employers?

• Employers who were subject to the OSHA ETS may still implement their own vaccination policy or they may choose not to at this time. Employers moving forward with a vaccination policy should be aware of state laws which will be discussed in a later blog.
• Health care facilities and suppliers subject to the CMS IFR must comply with the mandate. CMS will likely update its guidance, but the current version showing compliance deadlines of January 27 and February 28 can be found here.
• The SCOTUS January 13 decisions do not impact employers who are federal contractors and subcontractors. The vaccination mandate in EO 14042 is still stayed. See our prior blog here for more information.

Matrix Can Help!

Matrix offers ADA and medical vaccine exemption services for its ADA clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com