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Supreme Court Upholds One Vaccine Mandate, Knocks Down Another

The U.S. Supreme Court ruled on two vaccination regulations on January 13, 2022. It upheld the Centers for Medicare & Medicaid Services' vaccine mandate for health care workers, but blocked the Occupational Safety and Health Administration's requirement for employers with 100 or more employees to implement either a vaccine mandate or a "vax or test" system.

This article covers both Court rulings and how they will affect businesses and their employees. Please note that all employers – in the health care industry and otherwise – are still subject to state and local guidance, and therefore need to consider those regulations when creating workplace policies.

Court Upholds Vaccine Mandates for Health Care Workers

In the health care arena, the Court upheld the federal government's vaccine mandate for health care workers employed by Medicare or Medicaid certified hospitals, nursing homes, ambulatory surgery centers, hospices, and rehabilitation facilities, among others.

But just because your entire staff isn't vaccinated today does not mean that you will lose your Medicare or Medicaid tomorrow. The U.S. Department of Health and Human Services has made it clear that to comply with the rule, all health care employees have to get their first shot by January 27, 2022, and their second shot by February 28, 2022. And DHHS will provide extended grace periods of between 30 and 60 days for employers who have 80 percent or more of their staffs vaccinated, and will still recognize valid religious and medical exemptions if a reasonable accommodation is possible.

Additionally, DHHS has said that terminating a provider's Medicare and Medicaid certifications is the last step – not the first step – of its enforcement. Survey violations and financial penalties come first. Termination of Medicare and Medicaid will come only after repeated non-compliance.

In its 5-4 decision, the Court explained that the U.S. Secretary of Health and Human Services has always had the statutory power to promulgate regulations "as may be necessary to the efficient administration of the functions with which" he is charged, and noted that perhaps the most basic such function is ensuring that health care providers who care for Medicare and Medicaid patients protect their patients' health and safety. The Court noted that DHHS long ago adopted requirements to stop the spread of infectious diseases, and imposed penalties, up to and including termination of a provider's Medicare and Medicaid certification, for violations of such regulations.

The ruling also noted that the DHHS rule does not apply to employees who only work remotely.

But the bottom line for health care providers who have delayed mandating vaccines for employees is clear: There is no more time to waste.

Court Blocks OSHA's Vaccination or Test Mandate

The Court halted enforcement of OSHA's emergency standard that requires employers with 100 or more employees to implement either a mandatory vaccination policy or a "vax or test" system. In its 6-3 decision, the Court explained that OSHA exceeded the limits of its legal authority, writing 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."

Most large employers therefore don't need to worry about complying with the OSHA standard, but should keep an eye out for further developments at the federal level. Of course, state and local vaccine guidance and mandates are still in play, and should be considered when deciding whether to implement vaccination and/or testing policies.

© 2023 Much Shelist, P.C.National Law Review, Volume XII, Number 14

About this Author

Bob Neiman Healthcare Litigation Attorney Chicago

Bob is an experienced litigator who focuses his practice on health care regulatory counseling and litigation, employment-related counseling and litigation, and commercial litigation, including insurance coverage matters and other business disputes.

Bob also advises a wide range of clients on employment issues, such as non-compete and trade secret agreements, as well as harassment, discrimination, and wrongful discharge claims. He has successfully defended clients in a wide range of employment-related litigation. As lead counsel in Fisher v....

Laura A. Elkayam Chicago Commercial Litigator Much Shelist

Laura Elkayam is a Principal at Much Shelist's Chicago office. Laura helps clients navigate a variety of complex litigation matters, including breach of contract claims, shareholder disputes, fiduciary duty disputes, restrictive covenant disputes, and employment discrimination. She works with a diverse client base, from established companies in the restaurant, cannabis, and gaming industries to tech startups to small family-owned businesses.

Laura defends clients against class action suits ranging from claims of privacy breaches to wage and hour...