OSHA withdraws vaccine or test mandate

Key takeaways:

  • Effective January 26, 2022, the Occupational Safety and Health Administration (OSHA) has withdrawn its vaccine-or-test Emergency Temporary Standard (ETS) for employers with 100 or more employees. This is the official end of the ETS—employers do not need to comply with it.
  • OSHA is still proceeding with a permanent COVID standard via the regular (slower) rulemaking process, and that standard will have similar requirements if finalized. We will let you know if and when that happens. We expect a permanent rule would likely run into many of the same legal hurdles as the ETS.
  • Employers should continue to comply with all other federal, state, and local requirements. If you’re in a state with an OSHA State Plan, you should check with your state agency for state OSHA requirements.
  • The below information is background for informational purposes.

OSHA Emergency Temporary Standard (ETS)

On January 13, 2022, the United States Supreme Court stayed enforcement of  OSHA’s Vaccine or Testing Emergency Temporary Standard (ETS), pending disposition of the underlying applications in the United States Court of Appeals for the Sixth Circuit. The OSHA  ETS requires private employers with one hundred (100) or more employees to mandate COVID-19 vaccination  for their employees or require unvaccinated employees to submit to weekly testing and masking requirements, at their own expense. Under the ETS, Employers are not required to offer a testing option and could enforce a company-wide vaccine mandate if they so choose.

The Supreme Court’s decision only halts enforcement of the ETS, and is not an adjudication of the legality of the ETS or whether it should be struck down permanently. In a per curiam decision, the Court ruled that the “[a]pplicants are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate,” as the Secretary’s authority was confined to setting workplace safety standards, and not implementing “broad public health measures.”

The Court goes on to discuss the limitations of OSHA’s ability to regulate work-related dangers, stating:

“Although COVID– 19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the 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.”

Further, the Court commented that unlike more broad regulations imposed by OSHA such as fire or sanitation regulations “a vaccination, after all, ‘cannot be undone at the end of the workday.’”

Also persuasive to the Court was the Senate’s majority vote on December 8, 2021, disapproving of the mandate, and the “lack of historical precedent” for the mandate in OSHA’s half-century existence, in addressing a “threat that is untethered, in any causal sense, from the workplace.”

The Court describes the regulation as “a blunt instrument. It draws no distinctions based on industry or risk of exposure to COVID–19.” Further, the narrow exemptions for certain classifications of employees are largely illusory, such as those who work exclusively outside. Under the regulation, it is estimated that only nine percent of landscapers and groundskeepers qualify as working exclusively outside.

While the Supreme Court’s remarks are not a final adjudication on the merits, employers should take heed that similar reasoning may be adopted by the Sixth Circuit. Employers who may have initially been inclined towards a more “wait and see approach” may find reassurance in the Supreme Court’s decision to stay enforcement.

Notably, stay of the OSHA ETS has no effect on existing state or local vaccine mandates such as the employer vaccine mandate in New York City. Effective December 27, 2021, all workers in New York City who perform in person work or interact with the public in the course of business must show proof of at least one dose of a COVID-19 vaccine, with forty-five (45) days to provide proof of a second dose. Businesses are prohibited from permitting unvaccinated workers from entering their workplaces (including vehicles) where at least one other person is also present. For more information on New York City’s vaccine mandate for employers, please visit the link here.

Centers for Medicare & Medicaid Services (CMS)

In a separate per curiam decision, the Supreme Court lifted two injunctions previously blocking  enforcement of the Centers for Medicare & Medicaid Services (CMS) Rule requiring COVID-19 vaccination for healthcare employees of Medicare- and Medicaid-certified providers and suppliers.

In that decision, and in permitting the CMS Rule to proceed, the Court reasoned that, “[h]ealthcare workers around the country are ordinarily required to be vaccinated for diseases such as hepatitis B, influenza, and measles, mumps, and rubella[,]” and that state-required vaccination against these diseases explained the lack of agency mandate by CMS in the past as a condition of participation in funding.  The Court also noted that while the Secretary has never had to address infection problems of this scale in the past, implementing “all kinds of infection control measures at these facilities”  was certainly within the Secretary’s authority. CMS vaccination requirements may be enforced pending final disposition of the Government’s appeals in the Fifth and Eighth Circuit Courts of Appeal.

CMS released interpretive guidance on Friday, January 14, 2022,  for those states affected by the Supreme Court decision including: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia and Wyoming.

States that are not identified above are expected to continue under the timeframes and parameters identified in the December 28, 2021 memorandum (QSO-22-07-ALL).

For additional information, please also review a press release by CMS Administrator Chiquita Brooks-LaSure issued in response to the Supreme Court’s ruling on January 13, 2022.

Employers who fail to meet CMS vaccination requirements in accordance with the published guidance, will be subject to various enforcement remedies (depending on the type of provider) which may include civil monetary penalties, denial of payments, and termination of participation from the Medicare and Medicaid programs. CMS has stated that its objective is to bring those subject to the Rule into compliance, with termination generally occurring only after an opportunity to make corrections and come into compliance has been provided to a facility.

Disclaimer: The information contained herein is not intended to be construed as legal advice, nor should it be relied on as such. Employers should closely monitor the rules and regulations specific to their jurisdiction(s) and should seek advice from counsel relative to their rights and responsibilities.

Megan Butz

By Megan Butz
General Counsel, HR Compliance, Checkwriters
Megan joined Checkwriters in 2020 and is responsible for reviewing, revising, and implementing internal policies of the company, advising on human resource, employment, and labor matters, and monitoring and publishing state and federal legal updates to the Checkwriters News and Compliance Center for distribution to thousands of clients around the country. Before joining Checkwriters, Megan served as a judicial law clerk for the justices of the Massachusetts Probate and Family Court performing legal research and writing, followed by private practice in Cape Cod.

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