Last week, the U.S. Supreme Court heard arguments on challenges to both the CMS vaccine mandate and the OSHA vaccine-or-test Emergency Temporary Standard (ETS) for large employers. Most court observers agreed that a majority of the justices were skeptical of OSHA’s ability to impose its mandate, but seemed more receptive to the CMS rule. The Court’s ruling is expected any day.
National Federation of Independent Business v. Department of Labor) focuses on the vaccine-or-test mandate issued by OSHA, which requires all employers with 100 or more employees – about two-thirds of the private sector – to require them to either be fully vaccinated against COVID or be tested weekly and wear masks. The conservative justices on the Court signaled that they do not believe that OSHA has the authority to impose the rule.
In Biden v. Missouri, the justices considered whether the Biden administration can enforce a rule that requires health care workers at facilities that participate in Medicare and Medicaid (those subject to Conditions of Participation (CoPs)) to be fully vaccinated against COVID-19, unless they qualify for a medical or religious exemption. The CMS rule would apply to more than 10 million workers, although it is currently enjoined in half of the states.
As a reminder, CMS has resumed enforcement of its mandate in many states. The OSHA large-employer ETS is also in place for now, with the first compliance deadline this past Monday, January 10. OSHA has said, however, that it will not issue citations for noncompliance with the testing requirement until February 9, as long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.