Monthly Archives: January 2022

Vaccine/Testing Mandate Voided by Supreme Court for Businesses with 100+ Employees; Healthcare Workers Mandate Upheld

On Thursday, January 13, 2022, the United States Supreme Court completely voided the OSHA Emergency Temporary Standard that required employers with 100+ employees to institute this week a vaccine or testing requirement on its employees. However, the Supremes also upheld the OSHA requirement that any size of healthcare facilities that accepts Medicare or Medicaid payments must vaccinate their workers.

The Large Employer Rule Struck Down

When addressing the OSHA ETS for large employers, the Supreme Court majority stated that the Secretary of Labor had acted too broadly. The six conservative justices ruled that “Applicants are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate. Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided. The Secretary has ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense. This is no “everyday exercise of federal power.”

They went on to emphasize this opinion that “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. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.

Technically, the mandate is “stayed” pending more legal action in the Sixth Circuit and possible writs of certiorari back to the Supreme Court. However, for all practical purposes, large employers can stop their efforts to determine the vaccination status of employees, stop requiring masks of all unvaccinated employees, forget about workplace testing for COVID-19 beginning in February and withdraw the written policies they just put into place.

Healthcare Mandate Gets Approval of Supreme Court

Healthcare facilities, however, have to get into compliance with the CMS mandate. The 5-4 decision states that the Secretary of Health and Human Services does have the power to require vaccinations of healthcare workers (except those with medical or religious exemptions). “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.  It  would be the very opposite of efficient and effective  administration for  a facility that is supposed to make people well  to  make them sick with COVID–19.”

There has been a stay pending on this mandate in 26 states, including Texas. However, that stay is no longer effective, and 10 million healthcare workers will have to be fully vaccinated or claim a medical or religious exemption (which may make them ineligible to work) in the next six weeks. Unless Health and Human Services updates their schedule, healthcare facilities that received Medicare or Medicaid payments have until January 22 to get a written vaccination mandate in place. By that date employees either have to have had at least one dose of the vaccine or have submitted a medical or religious exemption request.

By February 28, healthcare employees have to be fully vaccinated or have been granted an exemption. And exemptions don’t mean that the employee can keep working. For example, unvaccinated employees may not be able to be involved in direct patient care. Eventually, that could result in no available work for that employee. Employers should get their employment lawyer involved in the exemption process because it can lead to eventual termination of the exempt employees, which has to be done carefully to avoid discrimination claims.