On December 22, the U.S. Supreme Court issued orders announcing that it would hear oral arguments on January 7, 2022, regarding two of the three Biden Administration’s COVID-19 vaccine mandates: (1) the OSHA Emergency Temporary Standard (or “ETS”) relating to COVID-19 vaccination and testing and (2) the CMS mandate requiring all healthcare workers in CMS-regulated settings to be fully vaccinated against COVID-19.
Although oral arguments will take place on Friday, January 7, it is unclear when a decision will be issued and employers should be aware that enforcement measures by OSHA and CMS could occur before the court issues its decision.
OSHA ETS Rule: Vaccination or Testing for Employers with 100+ Employees
On November 5, OSHA issued the ETS Rule requiring large employers (i.e., those with 100+ employees) to develop a COVID-19 vaccination policy ensuring that all employees are vaccinated or submit to weekly COVID-19 testing by January 4, 2022.
Then, on November 12, the Fifth Circuit issued a “stay” preventing OSHA from enforcing the OSHA ETS Rule. The Fifth Circuit questioned the constitutional and statutory authority of OSHA to issue the ETS Rule. The litigation was then transferred to the Sixth Circuit. On December 17, the Sixth Circuit issued an order “lifting” the stay and allowing OSHA to enforce the ETS Rule.
OSHA responded by immediately announcing that it would begin enforcement of the OSHA ETS Rule on January 10, 2022. OSHA also announced that it would not start enforcing the vaccination or testing portion of the OSHA ETS Rule until February 9, 2022.
CMS: Vaccination Mandate for Healthcare Workers
The CMS vaccine mandate was also issued on November 5. As initially proposed, the CMS vaccine mandate required all healthcare workers in CMS-regulated settings to be fully vaccinated against COVID-19 by January 4, 2022.
Then, CMS was enjoined from enforcing its vaccination mandate by federal district courts in Missouri and Louisiana. While CMS was initially barred from enforcing its vaccine mandate in all 50 states, appeals resulted in the injunction being lifted in 25 of 50 states.
Unlike OSHA, CMS has not taken steps to “restart” enforcement in any of the 25 states (including Minnesota and Wisconsin) where it is permitted to enforce its CMS Rules. However, nothing prevents CMS from changing its position in any of the 25 states where the injunction does not apply.
Supreme Court Review – What Does It Mean?
As an initial matter, we do not know how the court will rule – either striking down or upholding one or both vaccine mandates. What is more, we also don’t know the timing of any decision. While the Supreme Court will hear oral arguments on Friday, January 7, it is unknown whether the Court will issue a decision regarding the OSHA or CMS mandates before the agencies (particularly OSHA) begin enforcement.
What about the Federal Contractor’s Mandate?
For those wondering about the COVID-19 vaccine mandate for federal contractors, it is not part of the Supreme Court’s hearing on January 7. It is still winding its way through the courts.
Remember, on December 7, a federal court in Georgia issued the nationwide injunction against the federal contractor mandate. Then, on December 17, the Eleventh Circuit left the nationwide injunction in place. The court did, however, allow for expedited briefing, which means that briefing on the issue will be done by January 24, 2022. A decision from the appeals court isn’t likely until February 2022 and, by then, the court may have guidance from the Supreme Court on the other vaccine mandates.
Bottom Line
With respect to the OSHA ETS Rule, the hearing is only one business day before OSHA begins enforcing the bulk of its ETS Rule on Monday, January 9. Thus, prudent employers should continue preparing for the OSHA ETS Rule’s first effective date (January 10).
Employers in any of the 25 states where CMS is not prevented from enforcing its vaccine mandate should carefully monitor communications from CMS regarding enforcement. And, unless CMS changes its wait-and-see policy, employers can take more of a “wait-and-see” approach. That said, if the Supreme Court issues a decision upholding the CMS mandate, CMS will not wait long to begin enforcement. Thus, a prudent healthcare employer may wish to continue taking pre-implementation steps to plan for any future enforcement by CMS.
For the federal contractor mandate, the nationwide injunction will likely remain in place through at least the end of January 2022. By that time, though, we should have guidance from the Supreme Court on the enforceability of vaccine mandates, but a prudent federal contractor may want to stay “ahead of the curve” by working on pre-implementation steps now because February 2022 will be here sooner than you think.
Lastly, from everyone on the Labor & Employment Team at Felhaber Larson: Happy Holidays!