On Thursday afternoon, January 13, 2022, after hearing oral arguments on January 7, 2022, the Supreme Court of the United States (SCOTUS) issued rulings concerning the following Federal vaccination mandates:

• Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) pertaining to private employers with over 100 employees; and
• The Centers for Medicare and Medicaid Services (CMS) emergency rule (Emergency Rule) requiring COVID-19 vaccination of health care workers in facilities receiving funding from Medicare or Medicaid.

OSHA ETS (Private Employers)

By way of background, the OSHA ETS required workers at businesses with 100 or more employees get vaccinated or provide a negative COVID-19 test weekly to enter the workplace. Further, unvaccinated workers were required to wear masks indoors at work. The ETS went into effect on, and has been in litigation since, November 5, 2021. It was blocked by the 5th U.S. Circuit Court of Appeals early on but was later reinstated by the 6th Circuit on December 17, 2021.

The SCOTUS ruling indicated that OSHA lacked the authority to impose the vaccination mandate on private employers. Specifically, SCOTUS determined that the OSH Act only allows the agency to set workplace safety standards, not broad public health measures, and sent the case back to the 6th Circuit Court. In addition, the court argued that the requirement for employees to either become vaccinated or undergo weekly testing is not an exercise of federal power. Instead, SCOTUS stated the ETS represents a “significant encroachment into the lives and health of a vast number of employees.”

Because this case is being sent back to the 6th Circuit, employers will need to continue monitoring any legal developments on vaccination mandates.

CMS Vaccine Mandate (Specific Healthcare Workers & Facilities)

Also on January 13, 2022, the SCOTUS issued a ruling that dissolves the several temporary injunctions blocking enforcement of the Emergency Rule. The Emergency Rule initially required all healthcare facilities that receive Medicare and Medicaid payments, such as nursing homes and hospitals, to have all eligible staff fully vaccinated by January 4, 2022.

The Emergency Rule was issued on November 5, 2021, along with frequently asked questions (FAQs) that were subsequently updated on December 28, 2021. The updated FAQs reflected CMS’ decision to suspend enforcement of the Emergency Rule resulting from several U.S. District Court of Appeals’ decisions that preliminarily enjoined its enforcement in 25 states. As a result, it is likely that CMS will now reinstate its Emergency Rule and begin enforcing its requirements.

The FAQs for healthcare workers can be found here.

Company Required Mandates

Barring state laws prohibiting COVID-19 vaccination mandates, employers still have the option of requiring vaccination amongst its workforce.

Specifically, for California employers, the Supreme Court ruling has no impact on Cal/OSHA’s ETS currently in effect. This includes guidelines for testing and masking in the workplace, quarantine/isolation periods, documentation and record-keeping requirements, and the payment of exclusion pay. The rules set forth by the California Department of Public Health (CDPH) and local governmental agencies will govern.

The latest Cal/OSHA related information, along with CDPH guidance are available here, and here, respectively. The recently amended ETS can be found here.

ADDITIONAL INFORMATION

Please contact your Burnham Benefits Consultant or Burnham Benefits at 949‐833‐2983 or inquiries@burnhambenefits.com.

Burnham Benefits does not engage in the practice of law and this publication should not be construed as the providing of legal advice or a legal opinion of any kind. The consulting advice we provide is intended solely to assist in assessing its compliance with the Patient Protection and Affordable Care Act and other applicable federal and state law requirements, and is based on Burnham Benefit’s interpretation of federal guidance in effect as of the date of this publication. To the best of our knowledge, the information provided herein, and assumptions relied on, are reasonable and accurate as of the date of this publication. Furthermore, to ensure compliance with IRS Circular 230, any tax advice contained in this publication is not intended to be used, and cannot be used, for purposes of (i) avoiding penalties imposed under the United States Internal Revenue Code or (ii) promoting, marketing or recommending to another person any tax-related matter.