Yesterday, the Supreme Court issued its highly anticipated opinions on the Occupational Safety and Health Administration’s (OSHA) Vaccination or Testing Emergency Temporary Standard (ETS) in NFIB v. OSHA and the Centers for Medicare & Medicaid Services (CMS) vaccine mandate in Biden v. Missouri. The rulings are important as many employers have been waiting to begin compliance efforts pending the outcomes of each case. The question before the Court was not the validity of the mandates but whether the ETS and CMS vaccine mandate should be stayed until the merits of the validity of each, including whether OSHA and CMS had the authority to issue such mandates are determined.
The ETS decision may be seen as a relief for some private employers, while the CMS vaccine mandate may seem more burdensome, because it will now apply nationwide to covered facilities and suppliers.
In regard to the OSHA ETS, the majority of the Court in NFIB v. OSHA decided that another temporary injunction would be put in place until the merits of the mandate’s validity are decided by the lower Sixth Circuit Court. This means that the injunction is temporary, pending a decision from the lower court on whether the ETS will be permitted to stand and move forward or if it will be invalidated and not allowed to move forward. At this time, it is unknown how swiftly the lower court intends to act, but it could be weeks or months.
US Secretary of Labor, Marty Walsh, issued the following statement on the Supreme Court ruling: “I am disappointed in the Court’s decision, which is a major setback to the health and safety of workers across the country. OSHA stands by the Vaccination and Testing Emergency Temporary Standard as the best way to protect the nation’s workforce from a deadly virus that is infecting more than 750,000 Americans each day and has taken the lives of nearly a million Americans.
“OSHA promulgated the ETS under clear authority established by Congress to protect workers facing grave danger in the workplace, and COVID is without doubt such a danger. The emergency temporary standard is based on science and data that show the effectiveness of vaccines against the spread of coronavirus and the grave danger faced by unvaccinated workers. The commonsense standards established in the ETS remain critical, especially during the current surge, where unvaccinated people are 15-20 times more likely to die from COVID-19 than vaccinated people. OSHA will be evaluating all options to ensure workers are protected from this deadly virus.
We urge all employers to require workers to get vaccinated or tested weekly to most effectively fight this deadly virus in the workplace. Employers are responsible for the safety of their workers on the job, and OSHA has comprehensive COVID-19 guidance to help them uphold their obligation.
“Regardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program (NEP Program) and General Duty Clause.”
It should be noted that OSHA is also continuing with its formal rule making procedures to establish a permanent standard for COVID-19, as the ETS can only remain in effect for six months from the date of its publication in the Federal Register which was November 5, 2021. By taking steps to use the formal rulemaking procedures to establish a standard the likelihood of future legal challenges is decreased.
Next Steps for Employers Subject to the ETS
Employers have options on how to proceed now that another injunction is in place, such as pausing any compliance efforts made thus far, implementing their own mandatory vaccination policies, or continuing to wait and see whether the ETS is invalidated before complying.
Because the ETS is not entirely invalidated, and it could move forward at a future date, employers should carefully weigh whether they would like to hit the pause button on compliance or whether it would make sense for their business operations to continuing gathering vaccination status of employees and developing a policy.
Employers may also implement their own mandatory vaccination policies but should be aware of their obligations to provide reasonable accommodations for medical and/or religious reasons and any state specific laws which prohibit private employers from having mandatory vaccination policies.
Employers who continue to take a wait and see approach on implementing any of the compliance related measures of the ETS should heed the Labor Secretary’s statement as it signals that OSHA is still very much concerned with the safety and health of workers and ensuring that employers take steps to mitigate the spread of COVID-19 in their workplaces. Specifically, under the General Duty Clause employers can be cited for violation of the Clause if a recognized serious hazard exists in their workplace and the employer does not take reasonable steps to prevent or abate the hazard.
The General Duty Clause is used only where there is no standard that applies to the particular hazard. To not run afoul of the General Duty Clause, at a minimum, employers should assess the hazard of COVID-19 in their workplace and consider implementing measures, such as requiring unvaccinated workers to wear masks when working indoors or in confined spaces such as vehicles; having a process in place for employees to report positive tests; ensuring that employees who test positive are removed from the workplace until their isolation period is completed; requiring social distancing; restricting business travel for unvaccinated workers, etc..
All employers are encouraged to review OSHA guidance on COVID-19. Furthermore, employers in “high-hazard industries” should review and pay careful attention to OSHA’s NEP Program as employers in these industries are likely to face additional scrutiny from OSHA.
Employers should also seek guidance from the legal counsel to ensure that their intended approach does not violate any other applicable federal, state, or local laws.
CMS Vaccine Mandate
In the Supreme Court’s opinion regarding Biden v. Missouri, it was decided that the Centers for Medicare & Medicaid Services (CMS) vaccine mandate for healthcare facilities and suppliers will stand, and the injunction introduced by 25 states in order to block the mandate, has been lifted so that the mandate currently applies nationwide.
In a split 5-4 decision, the Supreme Court confirmed that the mandate issued by the Secretary of the Department of Health and Human Services was implemented to “ensure that healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety” and that the rulings fall within the authorities that had been granted by Congress in order to respond to the pandemic. The opinion stated that CMS’ Interim Final Rule “does not fit neatly within the language of the statute” but that healthcare facilities across the country, have previously adopted procedures for influenza and other necessary vaccinations in order to protect the population they serve. As such, the Court confirmed that the procedures surrounding mandatory COVID-19 vaccination were no different. The Court noted that the mandate was not only legal, but that the procedures issued were “a straightforward and predicable example of the ‘health and safety’ regulations that Congress has authorized CMS to impose.”
Next Steps for Employers Subject to the CMS Vaccine Mandate
Even though the opinion offered by the Supreme Court was not an official ruling on CMS’ authority to issue the mandate, it allowed for the injunction to be lifted and the mandate to proceed. However, the Fifth & Eighth Circuit Courts of Appeals may continue to argue against it, but employers bound by the mandate will need to take steps necessary to comply. There are two compliance dates that covered entities will need to ensure that they meet to be in compliance. The Department has also confirmed delayed enforcement action for employers who meet certain compliance percentages.
The first compliance date that employers must be cognizant of is January 27, 2022. By this date, covered entities will need to develop and implement policies and procedures for ensuring staff vaccination by tracking vaccination status and engaging the interactive process for employees who need an accommodation/exemption due to a medical or religious reason. Additionally, on January 27th, 100% of covered staff must have completed their first dose of the COVID-19 vaccination, unless they are entitled to a reasonable accommodation/exemption. However, if an employer can verify that by January 27th, that more than 80% of their staff has been vaccinated and that they plan to achieve 100% vaccination status within 60 days, the employer would be considered exempt from immediate enforcement action.
The second compliance date that employers must be cognizant of is February 28, 2022. By this date, covered entities must confirm that they have achieved 100% vaccination status, except for those employees who have qualified for an accommodation/exemption. Similar to the January 27th compliance date, there is delayed enforcement action, if a covered entity can verify that as of February 28th, 2022, they have achieved more than 90% vaccination status and that they plan to reach 100% vaccination within the next 30 days.
Although the CMS ruling has been allowed to proceed based on the Court’s opinion, many states have begun enacting or have enacted legislation in an attempt to block the mandate further. However, the Supreme Court has stated that the CMS mandate supersedes any state law that conflicts with the federal mandate. As a result, employers covered by the mandate should speak with legal counsel in order to navigate any conflicts that occur between federal, state, or local laws.
HR Works will continue to monitor any new developments on the federal vaccine mandates and provide updated information as it becomes available.