By Mackensie Graham
As we near the two-year marker of COVID-19 changing the ways we interact with one another, we also near the two-year marker of employers trying to make sense of how to keep employees as safe as possible.
Two big players making the headlines for COVID-19 mitigation in the workplace include the Occupational Safety and Health Administration ("OSHA") and the Centers for Medicare & Medicaid Service ("CMS"). Both OSHA and CMS' regulations included some sort of vaccine mandate for certain employers. These regulations faced challenges in the lower courts and meanwhile employers, HR professionals, and lawyers alike faced a perplexing puzzle determining what they had to do. On January 13, the Supreme Court of the United States (SCOTUS) provided some direction on where employers go from here.
Let's refresh what the OSHA and CMS regulations under review said and their current status following the SCOTUS' input.
OSHA Emergency Temporary Standard (ETS): Vaccine or Test Mandate for Employers with 100+ Employees
Released as an interim rule back in June 2021 and published in the Federal Register in November 2021, OSHA ETS created a structure for private sector employers with 100 or more employees to mandate COVID-19 vaccination and/or weekly testing. It also necessitated other administrative tasks and preventative measures to implement in the workplace. By December the ETS was subject to multiple injunctions barring enforcement of fines for violations pending legal resolution.
What did SCOTUS do?
The Supreme Court stayed (AKA put on hold) the implementation and enforcement of this regulation for the time being. The ETS will go back to the U.S. Court of Appeals for the Sixth Circuit for further review. Potentially the ETS could come back before SCOTUS in the future, but as of January 13, the Court sided with the ETS challengers—a group of business and trade associations plus a coalition of states—on the grounds that OSHA exceeded its authority to make this mandate. The 6-3 decision (Justices Breyer, Kagan, and Sotomayor dissented) emphasized OSHA's role in setting "workplace safety standards, not broad public health measures."
What does this mean for employers?
Following the Supreme Court's ruling, U.S. Secretary of Labor Marty Walsh issued a statement including the following recommendations:
We urge all employers to require workers to get vaccinated or tested weekly to most effectively fight this deadly virus in the workplace. Employers are responsible for the safety of their workers on the job, and OSHA has comprehensive COVID-19 guidance to help them uphold their obligation. Regardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program and General Duty Clause.
Likewise, the White House released a statement:
As a result of the Court's decision, it is now up to States and individual employers to determine whether to make their workplaces as safe as possible for employees, and whether their businesses will be safe for consumers during this pandemic by requiring employees to take the simple and effective step of getting vaccinated.
More recently, on January 25, OSHA decided to completely drop the ETS after the Supreme Court decision. The Biden Administration also sought to have the case involving the challenged mandate (now back in the Sixth Circuit Court of Appeals) dismissed because the policy is withdrawn as of January 26 and thus the case is moot.
Employers can choose to impose vaccine mandates but need to be careful to not run afoul of any state laws, the Americans with Disabilities Act (ADA), or the Title VII of the Civil Rights Act of 1964. For instance, in October 2021, Iowa passed a law requiring employers to waive a vaccine mandate for any employee who requests a waiver and submits a statement saying the vaccine will be injurious to them or someone residing with them, or conflicts with their religion. That said, the law fails to provide any information about the identity of any enforcement authority or if penalties are imposed on employers that do not provide vaccine waivers. In short, enforcement of this waiver requirement remains unclear.
Interestingly, 35% of employers polled by Gartner Inc. after the Supreme Court's ETS decision reported they were going to move forward with their own vaccine mandate. 29% of surveyed employers indicated they would "wait and see" before deciding what to do next and 14% of employers surveyed said they were still planning on at least maintaining testing requirements.
Employers should be prepared to comply if OSHA were issue a different, more limited COVID-19 related standard in the future as the Department of Labor agency is "still considering moving forward with imposing a vaccine policy through the agency's normal rulemaking process, rather than an emergency one that's subject to less scrutiny."
Ultimately, private sector employers of all sizes should work with legal counsel and human resources personnel to plan what path forward works best for their industry as the situation with the pandemic continues to evolve.
CMS Vaccine Mandate: Healthcare Facilities
The CMS rule, published in November 2021, requires healthcare facilities (both providers and suppliers) that participate in Medicaid and Medicare programs establish a policy to ensure eligible workers are fully vaccinated against COVID-19. The rule does provide for exemptions based on recognized medical conditions and religious beliefs. This mandate covers approximately 10.4 million workers in 76,000 facilities across the nation.
What did SCOTUS do?
In a close 5-4 decision, SCOTUS found that CMS was justified—"not arbitrary or capricious"—in its vaccine mandate for healthcare facilities that provide supplies and services to patients participating in Medicare or Medicaid. The Court noted that COVID-19 presents a highly dangerous, deadly threat to Medicare and Medicaid patients and the mandate targets people in places where the threat of COVID-19 is heightened. The majority opinion also stated: "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.'"
What does this mean for employers?
Iowa was one of the 24 states that challenged the CMS rule. Now, healthcare facilities in Iowa subject to the vaccine mandate must ensure their eligible employees are fully vaccinated by March 15, 2022. The 25 other states (as well as D.C. and U.S. territories) that did not challenge the CMS rule have until February 28 to meet the compliance deadline.
Despite this SCOTUS ruling, there is no one-size-fits-all recommendation for all employers of how to best maneuver the workforce challenges, employment questions, and legal issues that COVID-19 presents. Of course, Bradley & Riley will continue to keep clients updated on developments that could impact the workplace. We will also continue to offer the tailored advice specific to our clients' individual circumstances.
For questions involving this or other legal concerns, please contact your Bradley & Riley attorney or Mackensie Graham by email at firstname.lastname@example.org or direct line at 319-861-8778.