February 2, 2023

Volume XIII, Number 33


February 01, 2023

Subscribe to Latest Legal News and Analysis

January 31, 2023

Subscribe to Latest Legal News and Analysis

January 30, 2023

Subscribe to Latest Legal News and Analysis

Supreme Court Pulls the Plug on OSHA Vaccine Mandate, but the CMS Vaccination Mandate is Resuscitated In the 25 States In Which It Was on Life Support

The Supreme Court yesterday released its much-anticipated decisions regarding the Emergency Temporary Standard (ETS) issued late last year by the Occupational Safety and Health Administration (OSHA), and the vaccination mandate for certain healthcare workers issued by The Centers for Medicare & Medicaid Services (CMS).  Both rules were implemented in response to the COVID-19 pandemic.  The OSHA ETS requires employers with 100 or more employees to ensure their workforce is fully vaccinated or require regular testing and masking. The CMS vaccination mandate requires COVID-19 vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement.

Supreme Court Reinstates Stay On OSHA ETS Enforcement

The Supreme Court blocked the ETS from taking effect.  It found that the ETS exceeded the scope of OSHA’s authority.  OSHA may mandate workplace safety measures, the Court reasoned, but may not mandate sweeping public health measures. 

The Supreme Court put back in place a stay – halting enforcement of the OSHA ETS nationwide.  However, the Supreme Court sent the matter back to a lower federal court of appeals for further litigation. In other words, there will still be many more legal filings before this matter is fully resolved.

This decision to stay enforcement of the ETS means that at this time, private employers are not required to comply with the mandates of the ETS to require employee vaccination or weekly testing. Though employers need not now issue or enforce a vaccination policy required by the ETS, this saga is far from over. From here, the fate of the ETS rests in the lower courts, where it will be fully litigated in the coming months. Employers should be aware of these continuing developments, and ensure they remain compliant with this ever-evolving area of law.

Further, without the ETS available for enforcement, employers should expect OSHA to fall back upon the General Duty Clause under the OSH Act.  This clause requires employers to maintain a workplace free of recognized hazards.  It is this clause on which OSHA had previously issued many citations over the failure of employers to implement effective policies and practices aimed to protect workers from COVID-19.

Supreme Court Lifts Stay On CMS Mandate

In contrast to the OSHA ETS, the Supreme Court ruled that the Secretary of Health and Human Services may begin enforcing the CMS vaccination mandate.  Congress authorized the Secretary to impose conditions on recipients of Medicaid and Medicare funds that “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.” According to the Supreme Court, requiring COVID-19 vaccinations fits “neatly within” Congress’s conferral of authority for health care providers receiving the federal funds.  The Court emphasized that healthcare workers are routinely required to receive vaccinations (for example, they are required to be vaccinated against hepatitis B, influenza, and measles, mumps, and rubella). 

As with the OSHA ETS, the Supreme Court’s decision about the CMS vaccination mandate is not the end of the road.  The cases challenging the CMS vaccination mandate will proceed in the lower courts where they may, eventually, be heard on the merits.  As we previously reported, CMS recently set January 27 and February 28, 2022 compliance dates for those states and territories where the stay was not in effect. In light of today’s Supreme Court decision, the agency has announced that the previously-communicated deadlines will remain in effect for those jurisdictions. In its announcement, CMS leaves open the question of when compliance will be required for covered employers in the remaining states, where the stay was in effect until today.

At the moment, healthcare employers (including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies) should ensure that they have a vaccination requirement in place for all employees, and that they are implementing and enforcing such requirements.  Further, employers should be aware that some states may have laws that conflict with the CMS vaccination mandate.  However, generally, when a federal law and a state law conflict, the federal law preempts the state law.  Yet, the issue of “preemption” was not part of the Supreme Court decision today.  Employers should seek legal counsel regarding the potential conflict with state laws in those jurisdictions where a state law is seemingly in conflict with the CMS vaccination mandate.


Just as the COVID-19 pandemic is not done; we can assure all of our readers that the litigation over the OSHA ETS and the CMS vaccination mandate is not done either.  We will, however, continue to monitor developments in this area, as we recommend you to do as well. 

© 2023 Foley & Lardner LLPNational Law Review, Volume XII, Number 14

About this Author

Amanda C. Hibbler Litigation Attorney Foley & Lardner Law Firm Chicago, IL

Amanda Hibbler is an associate for the Litigation Department at Foley & Lardner LLP. Amanda is based in the Chicago office where she is a member of the Labor and Employment Practice Group.

Prior to becoming a law clerk, Amanda was a summer associate at Foley. During law school, she was also a legal intern for American Axle & Manufacturing and served as a student mediator in paternity and divorce actions at Indiana University’s Family and Children Mediation Clinic.

John R. FitzGerald Labor Lawyer Foley and Lardner

John (Jack) R. FitzGerald is an associate and litigation lawyer with Foley & Lardner LLP, based in the firm’s Milwaukee office, where he is a member of the firm’s Labor & Employment Practice.

Prior to joining Foley, John clerked for the Honorable Gerald Bard Tjoflat of the United States Court of Appeals for the Eleventh Circuit and then for the Honorable Michael P. Mills of the United States District Court for the Northern District of Mississippi. While in law school, he interned for the Honorable William C. Griesbach of the United States District Court for the Eastern...

John S. Lord Jr., Foley Lardner, Arbitration Attorney, Litigation Lawyer,

Jack Lord is a partner and litigation lawyer with Foley & Lardner LLP. He focuses his practice on employment litigation and arbitration cases and has tried matters ranging from breach of contract, disability and national-origin discrimination claims to pregnancy and FMLA claims. He works with private and public employers in matters involving labor and employment law compliance. Mr. Lord regularly defends employers in class and collective action lawsuits. He has defended numerous entities that operate “public accommodations” against claims under Title III of the...

Larry S. Perlman, Senior Counsel, Personnel Matters Litigator, Foley Lardner
Senior Counsel

Larry S. Perlman is a senior counsel and litigation lawyer with Foley & Lardner LLP. Dr. Perlman advises clients on a wide array of personnel-related matters involving compliance with federal and state labor and employment laws. Dr. Perlman's practice also involves assisting clients with a variety of day-to-day human resource issues, such as employee discipline, employee leave, wage and hour questions, and disability accommodation. He is a member of the Labor & Employment Practice and the Automotive and Health Care Industry Teams.

Daniel A. Kaplan, Employment, Litigation, attorney, Foley Lardner Law firm

Daniel A. Kaplan is a partner and litigation attorney with Foley & Lardner LLP. Mr. Kaplan counsels employers in all aspects of the employer-employee relationship, including wage and hour, employment contracts, confidentiality and non-compete agreements, worker’s and unemployment compensation, family and medical leave, disability accommodations and compliance with the Americans with Disability Act, and all state, federal and local discrimination laws. Mr. Kaplan has experience litigating before various state and federal agencies, various state courts, and federal...