Supreme Court Decisions: OSHA ETS is Stayed, CMS Rule Back in Play (January 14, 2022)

On January 13, 2022, the United States Supreme Court issued two important decisions in the continuing legal battles involving COVID-19.

In National Federation of Independent Business et al. vs. DOL-OSHA, et al., the Court granted the Petitioners’ applications for emergency relief to stay OSHA’s Emergency Temporary Standard (ETS). As most employers are aware, the ETS would have required employers with 100 or more employees to develop, implement and enforce a mandatory COVID-19 vaccination policy, and require either that employees be vaccinated, or that unvaccinated workers undergo weekly testing and wear a face covering at work in lieu of vaccination.

The Court concluded that a stay is appropriate because the Petitioners are likely to succeed on the merits of their claim that OSHA lacks the authority to impose such a sweeping mandate. The stay will remain in effect pending disposition of the petitions for review in the United States Court of Appeals for the Sixth Circuit and disposition of the petitions for writs of certiorari, if any such writs are timely filed. The Court noted that should the petitions for writs of certiorari be denied, the stay order issued today would terminate. The decision was 6-3, with Justices Breyer, Sotomayor, and Kagan issuing a dissenting opinion. This decision was rendered as a companion case with Ohio et al., v. DOL-OSHA.

In the second case, Biden vs. Missouri, the Court took a different turn with respect to the interim rule of the Department of Health and Human Services (acting through CMS), which mandates that medical facilities nationwide require their covered staff to be vaccinated against COVID-19, or risk losing federal funding. In that case, the Biden administration asked the Court to stay two injunctions already put in place by various lower courts. In its decision issued today, the Court granted the Government’s application to stay those injunctions – which means that healthcare facilities covered by the interim rule must ensure that their covered staff are vaccinated against COVID-19. The decision was 5-4, with Justices Thomas, Alito, Gorsuch, and Barrett issuing a dissenting opinion. This decision was rendered as a companion case with Becerra et al. v. Louisiana, et al.

As a result of these rulings, and at least for now – employers are not required to comply with the OSHA ETS mandate but healthcare employers covered by the CMS mandate are subject to compliance with that interim final rule. Employers should also be mindful of various state and local laws which may be applicable depending on location.

Tennessee’s 2021 COVID law, codified at Title 14, prohibits private employers from requiring proof of COVID vaccination or taking adverse action for failure to do so, but the law specifically defines “private business” to exclude a Medicare/Medicaid certified provider or a healthcare provider enrolled in Medicare or Medicaid that is subject to fines or penalties for nonadherence to federal rules and regulations, but only to the extent such provider is subject to a valid and enforceable Medicare/Medicaid condition of participation that imposes a requirement that is contrary to the provisions of Title 14. Title 14 also excludes from its coverage “assisted-care facilities, a home for the aged, a nursing home, or a residential hospice …”

Employers covered by either or both of these Supreme Court decisions are encouraged to seek guidance from their attorney as to the impact of these rulings on their particular circumstances, and to stay abreast of updates as developments continue.

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