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EMPLOYMENT LAW UPDATE

Supreme court blocks OSHA vaccine mandate, dissolves stay on CMS mandate for healthcare industry

By Mike O’Brien

In a 6-3 decision, the U.S. Supreme Court has issued its opinion blocking OSHA’s vaccine mandate for employers with 100 or more employees. The majority ruled on Jan. 13 that OSHA had exceeded its authority when it issued the vaccine mandate, concluding that OSHA has authority only “to set workplace safety standards, not broad public health measures.” The court found that COVID presents a “universal risk” not limited to the workplace that is “no different from day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

Note: This decision addresses only the stay decisions of the lower courts. This decision from the Supreme Court stays implementation of the OSHA mandate, pending further review by a lower court. However, it is reasonable to doubt that the Supreme Court would change its position following a lower court’s review.

Supreme Court dissolves stay of CMS vaccine mandate for healthcare industry

In a separate 7-2 opinion, the U.S. Supreme Court-dissolved a lower court stay of the separate healthcare industry vaccine mandate issued by the Centers for Medicare & Medicaid Services (“CMS”). This rule applied only to employers in the healthcare industry that receive Medicare or Medicaid reimbursements. The rule requires vaccinations for all onsite employees, subject to limited exceptions for disability and religion. Unlike the OSHA mandate, the majority ruled that CMS acted within its authority when it issued its vaccine mandate. The Court explained that the CMS vaccine mandate “fits neatly” within the language of its authorizing statute. The Court added, “After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm. It would be the very opposite of efficient and effective administration for a facility that is supposed to make people well to make them sick with COVID-19.”

As noted by national human resources organization SHRM, “Employers that are covered by the CMS health care directive should note that the compliance deadlines have been extended. Workers must receive their first COVID-19 vaccine dose by Jan. 27 and be fully vaccinated by Feb. 26. Additionally, employers must track employees’ vaccination statuses and develop vaccination policies that include medical and religious exemptions and accommodations.”


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