Supreme Court to Decide Whether Federal Vaccination Mandate Regulations are Lawful

The U.S. Supreme Court has scheduled expedited oral arguments on January 7, 2022, on OSHA ETS and the CMS vaccine mandates. The Court’s decisions could decide whether the two vaccine mandates are lawful and, thus, whether covered employers must comply with them.

As our readers will recall, the OSHA ETS regulation applies to companies with 100 or more employees and requires employees to either vaccinate or test for COVID once per week as a condition of working on site at an employer’s place of business. Separately, the CMS regulation requires covered healthcare providers (in New York, CHHAs) to vaccinate their staff. The CMS regulation does not allow covered employees to “test out” of the mandate. Both the CMS and the OSHA regulations allow for religious and medical exemptions.

The CMS and OSHA regulations have both been challenged in various federal district courts. As we have been reporting for weeks, given the number of lawsuits filed against these regulations, and the importance of the questions raised by the lawsuits, this issue was bound to make its way to the United States Supreme Court.

OSHA has announced that it will begin requiring covered employers to comply with the regulation’s mandate as of January 10. The Supreme Court has not issued a stay on the enforcement of the OSHA regulation pending its decision, and it is unknown whether the Court will issue its decision in time for the January 10 compliance deadline set by OSHA. Thus, employers covered by the OSHA regulation should evaluate carefully whether to take a “wait and see” approach. New York home care providers will recall that the OSHA regulation most likely only applies to their fiscal intermediary personal assistants at this point in time, as their other employees are already covered by the stricter New York DOH vaccine mandate.

For employers covered by the CMS regulation, our readers will recall that the Fifth Circuit Court of Appeals lifted an injunction against the enforcement of the CMS rule for half of the states in the nation. As a result, the CMS regulation technically took effect in twenty-five states after that injunction was lifted (New York included). Nonetheless, CMS’s self-imposed non-enforcement position seems to still be in effect. On December 2, CMS declared that it would not be enforcing its regulation, due to ongoing litigation. CMS has not revoked that stance and, thus, while the regulation is technically in effect, it appears to not be enforced. Covered providers should consult counsel about their current obligations under the CMS regulation in view of these litigation developments.

As employers await the decision of the Supreme Court, they should also be cognizant of any local and, now, City-imposed vaccination mandates that might already be in effect and which may require a greater level of compliance than the federal mandates under the CMS and OSHA regulations.

Please contact us if you have any questions about your current obligations as to the vaccination mandates for your workforce. We will continue to monitor these developments and report on any significant new requirements.