Supreme Court Rules on Federal COVID Testing Mandates

On January 13, 2022, the U.S. Supreme Court finally ruled on the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (the “ETS”), which would have applied to private employers with 100 or more employees. In a 6-3 vote, the Supreme Court barred the ETS from taking effect.

The same day, the Supreme Court also ruled on the Centers for Medicare and Medicaid Services (CMS) Interim Final Rule, which requires all employees of healthcare facilities that receive Medicare and Medicaid funding to be vaccinated (the “CMS Rule”). In a 5-4 vote, the Court upheld the CMS Rule.

Background of the ETS:

The goal of the ETS was to minimize the transmission of COVID-19 in the workplace. The ETS covered all employers with 100 or more employees and certain state and local government employers. The ETS did not apply to employees who work from home, employees who work entirely outdoors, and employees who do not work at a workplace where others are present.

Employers covered by the ETS were required to implement a mandatory COVID-19 vaccination policy. An exception was made for employers who instead opted to implement a policy that required employees to either get vaccinated or submit to regular COVID-19 testing and wear a face mask at the workplace. The ETS required all covered employers to do the following:

• Determine the vaccination status of all employees and maintain records of each employee’s vaccination status.
• Support employees’ efforts to get vaccinated by providing employees reasonable time (including up to 4 paid hours) to get each vaccine dose, as well as reasonable paid sick time to recover from each dose.
• Ensure that all non-vaccinated employees be tested for COVID-19 at least weekly.
• Ensure that employees promptly provide notice when they are diagnosed with COVID-19.
• Immediately remove any employee who has been diagnosed with COVID-19 from the workplace.
• Ensure that all non-vaccinated employees wear face masks when indoors or in vehicles with others.
• Report all fatalities and in-patient hospitalizations related to COVID-19 to OSHA.

Part of the ETS went into effect on January 10, 2022. Prior to the Supreme Court’s stay of the ETS, covered employers were expected to comply with the COVID-19 testing requirement by February 9, 2022.

Many opponents of the ETS challenged it in various courts nationwide. Initially, the Fifth Circuit entered a stay, preventing the Biden administration from enforcing the ETS. Subsequently, after the lawsuits were consolidated, the Sixth Circuit lifted the stay and permitted the ETS to take effect. The opponents of the ETS then asked the U.S. Supreme Court to halt its implementation.

During oral argument at the Supreme Court on January 7, 2022, there was a clear divide between the justices, with some emphasizing the public interest in requiring vaccinations or testing and others concerned with OSHA’s authority to implement the ETS.

Background of the CMS Rule:

The goal of the CMS Rule is to minimize the transmission of COVID-19 in healthcare settings. The CMS Rule applies to healthcare facilities that receive Medicare and Medicaid funding, including hospitals, nursing homes, ambulatory surgical centers, rehabilitation centers, and more. Healthcare facilities covered by the CMS Rule must require all employees (including non-clinical employees and contractors) to receive their first COVID-19 dose by January 27, 2022 and be fully vaccinated or receive an approved religious or medical exemption by February 28, 2022.

Healthcare facilities covered by the CMS rule are required to track the vaccination status of all employees. Covered facilities are also required to provide reasonable accommodations to employees who request and receive exemptions due to a sincerely held religious belief or due to a disability or medical condition.

Supreme Court Rulings:

The Supreme Court entered an order on January 13, 2022 staying the ETS and preventing the Biden administration from implementing it. The majority of justices, in a 6-3 ruling written by Justice Kavanaugh, determined that although Congress gave OSHA the power to regulate workplace dangers, Congress did not give OSHA the broader power to regulate public health. The decision states: “Requiring the vaccination of 84 million Americans, simply because they work for employers with more than 100 employees,” improperly exceeded the scope of OSHA’s authority.

The same day, the Supreme Court entered an order upholding the CMS Rule. In a 5-4 ruling, the majority of justices determined that the “unprecedented circumstances” of the global pandemic permit the implementation of the CMS Rule. The Court also noted that the Secretary of Health and Medical Services has long had the authority to require certain providers to enforce infection prevention and control programs.

Practical Implications:

Private employers that would have been covered by the ETS are no longer required to comply. However, state-specific laws and regulations do still apply. Thus, employers in Washington should make sure to follow Washington’s state-specific COVID-19 testing and vaccination requirements.

Healthcare facilities that receive Medicare and Medicaid funding should be prepared to comply with the CMS Rule. Facilities covered by the CMS Rule must track the vaccination status of all employees and require all employees to be fully vaccinated by February 28, 2022.

For questions about this Alert, or other employment law related issues, please contact Richard J. Omata or Maria Y. Hodgins.