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Employment Law Notebook

Supreme Court Halts OSHA Vaccine Mandate for Large Employers, Allows CMS’ Vaccine Mandate for Employees Working in Healthcare

In two anticipated decisions, the US Supreme Court blocked the Occupational Safety and Health Administration (“OSHA”) from requiring employers with 100 or more employees to mandate their employees get the COVID-19 vaccine or get tested weekly for the virus and gave the Centers for Medicare and Medicaid Services (“CMS”) the green light to condition Medicare and Medicaid funding of health care facilities on them ensuring their staff are vaccinated against COVID-19 except for religious and medical reasons. These decisions remain in effect until courts of appeals address these cases more substantively and issue further opinions.

The Court focused its analysis in both opinions on the scope of authority of the agencies. In staying the OSHA rule, the Court held that the agency was attempting to regulate public health generally as opposed to workplace safety specifically, which is the mandate in the Occupational Health and Safety Act. It called OSHA’s Emergency Temporary Standard vaccination rule “a significant encroachment into the lives—and health—of a vast number of employees”  who can get COVID-19 anywhere, not just in the workplace. Given the universal risk people have to contract the virus in so many places in their lives, the Court held that OSHA was attempting to “regulate the hazards of daily life” which is beyond the power given to it by Congress.    The Court did however, leave open the possibility of OSHA issuing industry-specific rules for employers regarding COVID-19, commenting that the agency does have authority to regulate occupation-specific risks that make some work environments more risky than others. The problem with the ETS, it said, was that it imposed the same rules on all employers with 100 or more employees regardless of the different work environments.

In upholding the CMS rule for health care workers, the Court held that the core mission of CMS is to “ensure that the healthcare providers who care for Medicate and Medicaid patients protect their patients’ health and safety” and preventing the development and transmission of communicable diseases was a long-standing requirement for facilities receiving such federal aid. Accordingly, the new vaccine requirement was consistent with that mission and authority. 

You can find the decisions here.