On January 13, 2022, the U.S. Supreme Court blocked implementation of the Occupational Safety and Health Administration's (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) that applied to U.S. employers with 100 or more employees. As discussed in more detail below, the Court allowed similar requirements to stand for medical facilities that receive Medicare or Medicaid payments.

The OSHA Vaccination or Test ETS, with few exceptions, required private employers with 100 or more employees to mandate their employees to be vaccinated from COVID-19 or undergo regular weekly testing and wear a face covering at work.

A majority of the Justices concluded that OSHA had exceeded the authority granted it by Congress. The Court stated, "Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly . . . [r]equiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category."

Moving Forward, What May Employers Do, If Anything?

The Court's ruling does not mean that employer vaccination mandates cannot exist. Employers may still elect to implement specific vaccination or testing policies as they deem appropriate, except in the few states where such policies are prohibited or limited by state law. Further, there are approximately 20 jurisdictions with OSHA-approved state plans permitting the state safety and health agencies to implement their own rules.1

The Court's decision does not directly impact those state requirements. To the contrary, Justice Gorsuch, joined by Justices Thomas and Alito, in a concurring opinion expressed that the states are the best place to implement the policies.

Nonetheless, OSHA could still issue a "regular," i.e., non-emergency, standard by following a formal notice and comment process. The comment period under the now stayed ETS is still open, and OSHA could easily build on that record and issue a proposed standard. However, a new standard would take substantial time and likely would not require vaccination, but easily could require face coverings, distancing, and testing.

Meanwhile, employers still have to consider (1) OSHA General Duty Clause obligations (which generally track CDC guidance), (2) the federal CMS mandates (discussed below) for healthcare employers, (3) the federal contractor vaccine mandate (currently stayed nationwide, but likely will be reviewed ultimately by the U.S. Supreme Court), and (4) applicable and often conflicting state and local law requirements and limitations.

CMS Mandate

On November 4, 2021, CMS published the Omnibus Health Care Staff Vaccination Rule (CMS Mandate) as an Interim Final Rule requiring that individuals working in certain Medicare- or Medicaid-certified providers receive their first COVID-19 shot prior to December 6, 2021, and be fully vaccinated against COVID-19 by January 4, 2022. The CMS Mandate also requires the creation and implementation of policies and procedures related to COVID-19 staff vaccination.

The CMS Mandate, however, immediately faced a number of legal challenges. The U.S. District Court for the Eastern District of Missouri issued an injunction against the CMS Mandate in 10 states and the U.S. District Court for the Western District of Louisiana issued a preliminary injunction that initially blocked the mandate nationwide but which was limited to 14 states by the 5th Circuit Court of Appeals. In December 2021, the federal government asked the U.S. Supreme Court to stay the Missouri and Louisiana preliminary injunctions.

The Court held that the vaccination mandate falls within the authorities Congress granted to HHS, specifically that HHS can impose conditions on the receipt of Medicare and Medicaid funds that HHS "finds necessary in the interest of the health and safety of the individuals who are furnished services." The Court stated that one of the most basic functions of HHS is "to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients' health and safety."

The Court also noted that HHS has long established conditions with which facilities must comply to be eligible to receive Medicare and Medicaid funds, including infection prevention and control programs. The Court pointed out that healthcare workers and public health organizations "overwhelmingly support" the CMS Mandate, concluding that such support "suggest[s] that a vaccination requirement . . . is a straightforward and predictable example of the 'health and safety regulations' that Congress has authorized the Secretary to impose."

Finally, the Court held that the CMS Mandate was not arbitrary and capricious, and that CMS had good cause to delay notice and comment by publishing the mandate as an Interim Final Rule.

Deadlines for Vaccination

CMS issued guidance on December 28, 2021, stating that regulated providers in the 26 states and the District of Columbia who were not covered by the Missouri and Louisiana injunctions would be expected to require their workforce to receive the first dose of a COVID-19 vaccine by January 27, 2022, and be fully vaccinated by February 28, 2022. Although CMS has not yet been explicit in its deadlines for the 24 states affected by the Court's ruling, industry groups such as the American Hospital Association expect the same deadlines to apply.

CMS Administrator Chiquita Brooks-LaSure said that providers in the states covered by the decision "will now need to establish plans and procedures to ensure their staff are vaccinated and to have their employees receive at least the first dose of a COVID-19 vaccine." The Interim Final Rule does not require vaccination of staff who work exclusively outside the facility setting and do not have direct contact with other staff or patients. Providers may consider whether this exception can be met to reduce staffing shortages in appropriate circumstances.

Although some states, such as Florida, have enacted laws that limit vaccination mandates, providers who wish to participate in Medicare and Medicaid must adhere to CMS's rules.

Employers interested in reviewing their options related to vaccines, testing or other safety protocols are encouraged to contact Davis Wright Tremaine employment lawyers for guidance.


1  Oregon OSHA advised on their website that in light of the U.S. Supreme Court decision, Oregon OSHA will not move forward with adopting the same or similar standard in Oregon. Oregon OSHA maintains a COVID-19 rule that requires employers to implement protections for workers, including control planning, exposure risk assessments, sanitation, and notification. Cal/OSHA has already adopted a Covid ETS. It is unknown what Washington will do under its WISHA authority, although it has drafted an OSHA-identical ETS for possible implementation.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.