Supreme Court Blocks OSHA Mandate;
Allows CMS Mandate to Take Effect

January 13, 2022

Earlier this afternoon, the Supreme Court issued two separate opinions on the vaccine and masking mandates issued by OSHA and CMS. First, it reinstated a nationwide stay of the OSHA Emergency Temporary Standard (ETS), thus blocking OSHA's vaccine-or-test mandate for employers with 100 or more employees from taking effect. In a 6-3 ruling, the Supreme Court held that the ETS exceeded OSHA's authority, which it deemed to be limited to setting workplace safety standards, not imposing broad public health measures. It explained that the risk of contracting COVID-19 in the workplace is not an occupational hazard or work-related danger, but rather more like a universal, day-to-day danger such as crime, pollution, or other types of communicable diseases. The ETS, which was first blocked by the Fifth Circuit in mid-November and then allowed to take effect by the Sixth Circuit in mid-December, is now suspended nationwide. OSHA has not addressed the Supreme Court's ruling as of this writing.

In a separate 5-4 ruling, the Supreme Court also lifted the stays imposed on the Centers for Medicare and Medicaid Services’ (CMS) Interim Final Rule mandating vaccinations at certain Medicare- and Medicaid-certified facilities, thus allowing it to take effect nationwide. The Court held that CMS has statutory authority from Congress to impose conditions on the receipt of Medicaid and Medicare funds that CMS finds necessary to protect the health and safety of patients receiving CMS-funded services. CMS determined that a COVID-19 vaccine mandate will substantially reduce the likelihood that healthcare workers contract the virus and transmit it to their patients.

At this point, the OSHA mandate is no longer in effect and is unlikely to be revived, while the CMS mandate is in effect. Further, the Head Start Interim Final Rule mandating vaccines and masking for Head Start programs remains effective in 25 states. CAAs that are no longer subject to any vaccine mandate may still adopt vaccination, testing, or masking policies, subject to their state’s laws.

CAPLAW will be revising our Vaccine Mandate Compliance Guide to reflect these developments and will continue to provide updates to the network as necessary.

This news flash is part of the Community Services Block Grant (CSBG) Legal Training and Technical Assistance (T/TA) Center. It was created by Community Action Program Legal Services, Inc. (CAPLAW) in the performance of the U.S. Department of Health and Human Services, Administration for Children and Families, Office of Community Services Cooperative Agreement – Award Number 90ET0467-03-C3. Any opinion, findings, conclusions, or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the U.S. Department of Health and Human Services, Administration for Children and Families.

The contents of this news flash are intended to convey general information only and do not constitute legal advice. Any communication through this publication or through CAPLAW’s website does not constitute or create an attorney-client relationship. If you need legal advice, please contact CAPLAW or another attorney directly.