January 19, 2022

CMS and OSHA Vaccine Mandate Rulings

Written by Erica Martin

Supreme Court Vaccine Mandate Rulings

On January 13, 2022, the Supreme Court ruled in a 5-4 vote to uphold the COVID-19 vaccine mandate in place for healthcare workers under the Center for Medicare and Medicaid Services (CMS). The upheld vote means that healthcare workers that are employed by a company under the CMS, are required to be fully vaccinated by February 28, 2022. However, by a 6-3 vote in the same hearing, the court blocked a vaccine-or-test Emergency Temporary Standard (ETS) mandate set in place by the Occupational Safety and Health Administration (OSHA).

What does this ruling mean for your business?

Prior to the hearing, the ETS mandate required employers with more than 100 employees to issue a weekly COVID-19 test, or provide proof of vaccination for each individual. Following the court ruling, a statement released by the Biden administration suggested that the authority was now to local and state governments, in conjunction with individual business owners, to place a requirement for the vaccination on employees.

It is still highly suggested by the administration that vaccination be required by employers, although  OSHA cannot formally enforce the mandate further. Businesses that will continue to privately make the choice to require the vaccination, may or may not, also require proof of  vaccination for each employee. It is encouraged by the administration that employers  retain records of vaccination, the Sixth Circuit court of appeals were to overturn the OSHA mandate in the coming days and months. 

In terms of compensation, due to the court ruling in opposition of vaccine requirements, employers will no longer be required to pay employees for time getting vaccinated or time spent recovering from said vaccination. 

Are nonprofit organizations exempt from the Supreme Court ruling (CMS vaccine mandate)?

On a broad note, the idea that any company or organization, including nonprofits and regardless of number of employees, can privately enforce a vaccine mandate remains valid. This will be largely influenced by the decisions and agendas of local and state governments. 

Second, If the nonprofit organization is directly affiliated with a healthcare entity covered by the CMS regulation, specifically facilities that receive Medicare or Medicaid reimbursement, the mandate may be enforced. In addition to the requirement of vaccination, the CMS noted that further regulations will be enforced such as requirement for employees to wear masks. The federal government stated in oral arguments on January 7th, that the CMS may exercise enforcement discretion to lessen the responsibility on employers for employees voicing vaccine hesitations. 

Are further advancements possible in this Supreme Court ruling? 

Due to a clear 5-4 vote to uphold the CMS mandate and a 6-3 vote to block the OSHA “ETS” mandate, the judges have sent a clear message on the intent for these rulings. Although there are still appeal court hearings to follow in the days and weeks ahead, the Biden administration stated that there is no agenda to overrule the Supreme Court rulings or to adjust specifics in their entirety for the mandates as they are stated.