On January 13, 2022, the Supreme Court issued two highly anticipated decisions on separate federal COVID-19 vaccination mandates that, together, applied to tens of millions of private sector employees.
ETS for Large Employers is Halted
First, the Court halted enforcement of the Occupational Safety and Health Administration’s (OSHA’s) “shot-or-test” mandate and Emergency Temporary Standard (ETS), which applied to all private employers with 100 or more employees. Among other requirements, the rule mandated that all covered employers ensure that all employees were either fully vaccinated against COVID-19, or produced a negative COVID test result at least once per week. Enforcement of most of the rule’s requirements began on January, 10, 2022. However, with the Supreme Court’s decision, the rule is no longer in effect. The Court’s decision on the OSHA ETS rule can be found here.
Medicare/Medicaid Services Vaccine Mandate to Go Forward
Second, although the Court blocked enforcement of the OSHA mandate, it allowed a separate vaccination mandate that applies to medical facilities receiving Medicare and Medicaid reimbursement to go into effect nationwide. That mandate, which was issued by the Centers for Medicare and Medicaid Services (CMS), requires employees working at covered facilities, regardless of clinical responsibility or patient contact, to be fully vaccinated against COVID-19. Under the rule, “fully vaccinated” means an employee has received the initial two-shot regimen from Pfizer or Moderna, or the one-shot regimen from Johnson & Johnson. The rule does not include any option for testing in lieu of vaccination, though employees may receive religious or medical accommodations from the vaccination requirement. The Court’s decision on the CMS rule can be found here.
Before the Supreme Court’s decision on the CMS rule, orders issued by multiple federal courts had blocked enforcement of the CMS mandate in 25 states. Notably, enforcement of the CMS mandate was blocked in New Hampshire, but not Vermont. CMS announced that, beginning on January 27, 2022, all covered facilities in the states where enforcement was not blocked, including Vermont, are required to ensure that all employees have either received their first COVID-19 vaccination dose, or have requested an exemption. In addition, all covered employees are required to be fully vaccinated, or receive an exemption, by February 28, 2022.
Following the Supreme Court’s decision, CMS may now begin enforcing the rule in all states, including both Vermont and New Hampshire. Vermont employers covered by the rule should continue to implement plans for full compliance by January 27. New Hampshire employers covered by the rule should also plan for full compliance by that date, though it is possible that CMS may allow providers in states where the rule was previously blocked slightly more time to come into compliance. We expect CMS to announce enforcement dates for all states in the coming days.
For questions, contact a member of our Labor & Employment Law Team