As more fully discussed in the in-depth summary by our colleague, Taylor White, the U.S. Supreme Court blocked the OSHA emergency standard mandating vaccines in the American workplace.  This ruling nullifies OSHA’s intended enforcement of the mandate after January 10, 2021.

The primary rationale for blocking the OSHA mandate was that it was a “broad public health” measure, while OSHA’s overriding purpose is workplace safety.  The Supreme Court acknowledged that COVID-19 presents workplace safety concerns, but that the proposed rule addresses public health safety, which Congress did not authorize OSHA to oversee.

Where does this leave the vaccine mandate directed to healthcare workers?  Well, the Supreme Court leaves it in place…. for now.

Much like the OSHA emergency standard, the healthcare worker mandate is an interim final rule with comment period (IFR) issued by the Centers for Medicare and Medicaid Services (CMS).  The IFR revises Medicare conditions of participation (COPs) such that healthcare facilities that participate as providers in Medicare and Medicaid must ensure that their covered personnel are vaccinated against COVID-19.  See 85 Fed. Reg. 61555 (Nov. 5, 2021).  While Congress did not authorize OSHA to oversee public health safety, Congress has authorized the Secretary of Health and Human Services to analyze and implement COPs to ensure effective and safe healthcare environments, including conditions related to infection control and prevention.

As with other mandates, a number of states filed two separate lawsuits to challenge the CMS directive.  US district courts sided with the states and enjoined enforcement of the IFR.  CMS appealed to the Supreme Court when intermediate courts of appeal declined to stay the district court injunctions.

In its 5-4 ruling, the Supreme Court affirmed that one of the most basic functions of CMS is to “ensure that the health care providers who care for Medicare and Medicaid patients protect the patients’ health and safety.” Biden v. Missouri, Case No. 21A240 (Jan. 13, 2022); Becerra v. Louisiana, Case No. 21A241 (Jan. 13, 2022), 2.  The types of providers to which this oversight function applies include twenty-one industry segments such as hospitals, nursing homes, ambulatory surgery centers, hospices, rehab facilities, community mental health centers, and FQHCs.

In considering the IFR, the Court majority held that the “health and safety” language in various authorizing statutes broadly applied to Medicare and Medicaid providers, even if such language was not in all relevant, applicable statutes.  The majority also determined that the HHS Secretary “routinely imposes [COPs] that relate to the qualifications and duties of healthcare workers themselves.”  Id. at 6.

By finding that CMS acted within its authority to issue the IFR, the Court stayed the preliminary injunctions in the two lawsuits pending resolution of the underlying lawsuits, both of which are currently on appeal to the Fifth and Eight Circuits.

So for now, any healthcare facility provider that accepts Medicare and Medicaid must comply with the CMS requirement that their healthcare workers receive the COVID vaccine.

Winstead Shareholder Taylor White discusses U.S. Supreme Court Blocks OSHA’s Vaccine-Related Emergency Temporary Standard. View Here.

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