VACCINE MANDATE UPDATE: United States Supreme Court Halts OSHA’s Vaccine or Test Mandate and Okays the CMS Health Care Provider Vaccine Mandate

January 18, 2022

By Sarah Bushnell

On January 13, 2022, the United States Supreme Court stayed the OSHA Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to mandate employees to be vaccinated against COVID-19 or to test weekly and mask. Technically, the stay is temporary and prevents OSHA from enforcing the ETS while further litigation occurs. But the reasoning in the Court’s ruling makes it unlikely that the standard, in its current form, will ever be enforceable. Federal OSHA and Minnesota OSHA have acknowledged the ruling and will not enforce the ETS at present. Both will continue to enforce existing OSHA requirements regarding occupational safety related to the pandemic.   

On the same day, the Court lifted stays of the Centers for Medicare and Medicaid Services (CMS) interim final rule requiring health care providers that participate in Medicare and Medicaid to be vaccinated against COVID-19. The stays prevented enforcement of the CMS vaccine mandate in some states (not including Minnesota or Wisconsin). The Supreme Court’s decision means that the CMS mandate is in effect and fully enforceable pending further legal proceedings. CMS has recently issued guidance that requires covered facilities to be able to demonstrate that all employees who are not subject to an exemption or pending request for exemption have received a first dose of a COVID-19 vaccine by January 27, 2022 and have completed the series by February 28, 2022. Beginning March 22, 2022, facilities that have not achieved or do not maintain 100% compliance may be subject to enforcement action. 

President Biden’s Executive Order 14042 requiring the vaccination of employees of federal contractors has been stayed nationwide and is not being enforced by federal agencies pending further court developments.

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