The Supreme Court Blocks a COVID-19 Vaccine Mandate for 84-Million Workers, but Upholds a COVID-19 Vaccine Mandate for Healthcare Workers

In June 2021, the Occupational Safety and Health Administration (“OSHA”) issued an Emergency Temporary Standard (“ETS”) that would require, amongst other things, employers with 100 or more employees to adopt a mandatory COVID-19 vaccination policy. OSHA’s mandatory vaccination policy would affect approximately 84 million employees. An overview of the OSHA Vaccine Policy requirements can be accessed here.

Today, the U.S. Supreme Court issued an order blocking the OSHA ETS. Significantly, the Supreme Court determined that OSHA lacked the authority to impose such a vaccine mandate. The Supreme Court determined that allowing OSHA to impose such a mandate would expand its authority by allowing it to set broad public health measures, which it is not authorized to set. OSHA was empowered solely to set workplace safety standards. While the Supreme Court acknowledged that COVID-19 is a risk occurring in many workplaces, it is not an occupational hazard in most. Accordingly, the Supreme Court issued its ruling staying the OSHA ETS.

The Centers for Medicare and Medicaid Services (“CMS”) has also taken recent action to implement a COVID-19 vaccine mandate. In November 2021, CMS issued an Interim Final Rule (“IFR”) that would require facilities receiving Medicare and Medicaid funding to ensure that their staff are vaccinated against COVID-19. The CMS IFR would apply broadly to hospitals, nursing homes, ambulatory surgical centers, hospices, rehabilitation facilities, and other healthcare facilities. Similar to the OSHA ETS, the Supreme Court reviewed the CMS IFR to determine whether the vaccine mandate should be upheld.

Today, the Supreme Court issued an order upholding the CMS vaccination mandate. Ultimately, the Supreme Court determined that, unlike OSHA, CMS does have the authority to issue such a mandate. Specifically, the Supreme Court provided that Congress specifically authorized CMS to impose conditions on the receipt of Medicaid and Medicare funds which the CMS Secretary finds necessary in the interest of the health and safety of Medicare/Medicaid beneficiaries. Moreover, the Supreme Court held that CMS did not exceed its authority in requiring that, in order to remain eligible for Medicare and Medicaid payments, the facilities covered by the IFR must ensure their employees are vaccinated against COVID-19. Accordingly, the Supreme Court upheld the CMS vaccination mandate for facilities covered by the IFR.

For more information on the issues relating to this article, please contact Adrienne Dresevic, Esq. at adresevic@thehlp.com or the Health Law Partners at (248) 996-8510 or (212) 734-0128 or by email at partners@thehlp.com.