Supreme Court Might Block Vaccine-or-Test ETS, Allow CMS Mandate

The U.S. Supreme Court (the Court) heard oral arguments on January 7th, 2022, regarding the Occupational Safety and Health Administration’s (OSHA’s) vaccine-or-test standard and the Centers for Medicare and Medicaid Services’s (CMS's) vaccine mandate for healthcare workers. Presently, the Court has not made a final ruling regarding either mandate. On the whole, however, justices appeared skeptical of the vaccine-or-test standard but open to the CMS vaccine mandate. Meanwhile, OSHA’s vaccine emergency temporary standard (ETS) took effect on January 10th, 2022. Previously, the Sixth Circuit appellate court had lifted a stay placed on OSHA’s ETS.

Recap of OSHA’s Vaccine-or-Test ETS

Published in the Federal Register on November 5th, 2021, the ETS covers employers with at least 100 employees. In summary, the standard requires covered employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy. Therefore, covered employers must require their employees to either:

• receive a COVID-19 vaccination; or
• undergo regular COVID-19 testing and wear a face covering at work.

In brief, covered employers are required to obtain workers’ proof of vaccination and maintain records of their employees’ vaccination status. Additionally, they must ensure unvaccinated employees undergo weekly tests and wear face coverings indoors. Indeed, the vaccine-or-test ETS went into effect on January 10.

Uncertainty Among States and Businesses

Consequently, many states and businesses are uncertain whether the ETS will be enforced in the long run as the Court has yet to make a final ruling. Several state leaders, including those in Iowa and Arkansas, are pushing back against the mandate ahead of the Court’s decision. Meanwhile, Illinois and New York City are among those moving forward with the vaccine-or-test standard.

Recap of the CMS Vaccine Mandate

Earlier, on November 4th, 2021, the Federal Register published an interim final rule created by the CMS. Markedly, the published rule required staff working in Medicare- or Medicaid-certified providers to:

• receive a full vaccination against COVID-19 by January 4th, 2022, and
• to receive their first shot before December 6th, 2021.

However, U.S. District Courts in two states issued preliminary injunctions against the rule’s implementation. Subsequently, on December 2nd, 2021, the CMS released a memorandum verifying that it will not enforce the provisions of the interim final rule while there are court-ordered injunctions in place. Presently, the Supreme Court will decide the future of the CMS vaccine mandate.

Supreme Court Hears Arguments on the Two Mandates

On January 7, the Court heard arguments on both the vaccine-or-test ETS and the CMS vaccine mandate for healthcare workers. The Court heard just over three and a half hours of debate between the two mandates. Overall, justices appeared skeptical of an imposed vaccine-or-test mandate. Notably, Justice Samuel Alito felt the ETS was a departure from previous interpretations of OSHA. Furthermore, he noted that usually OSHA regulations apply only while on the job, while a vaccination would be permanent. Conversely, justices seemed to be more receptive to a mandate requiring vaccines for healthcare workers.

Vaccine-or-Test ETS Case

In National Federation of Independent Business v. Department of Labor, the Court heard arguments on the OSHA vaccine-or-test mandate. Lawyer Scott Keller, representing business groups, cited “…billions of non-recoverable costs” for businesses should the mandate be enforced. Further, he argued that Congress had not given OSHA an explicit power to impose a sweeping vaccine mandate. Chief Justice John Roberts seemed to concur, suggesting that a policy of this magnitude would not fall under OSHA’s general powers.

CMS Vaccine Mandate Case

Meanwhile, in Biden v. Missouri, justices considered a nationwide mandate requiring the full vaccination of healthcare workers at federally-funded facilities. Justice Sonia Sotomayor viewed the mandate as a valid use of the government’s powers. Correspondingly, Chief Justice Roberts pointed out that states had agreed to a broad provision, accepting certain requirements of the Department of Health and Human Services.