Opinion: Supreme Court vaccine rulings hold more questions than answers for employers
By Ryan Haws
On Jan. 13, as COVID-19 cases across the nation surged to seemingly omnipresent levels, a divided United States Supreme Court issued two key orders affecting President Joe Biden’s “Path Out of the Pandemic” action plan.
The first order belatedly held that the Occupational Safety and Health Administration exceeded its authority with its vaccine-or-test mandate and other temporary emergency standards, and it restored a nationwide temporary block on further implementation of the ETS.
Unfortunately for many employers, this order came three days after the first wave of ETS deadlines took effect on Jan. 10, 2022, and after those employers had already instituted ETS-compliant policies in their workforces. Despite the delay, the order brings welcome relief to businesses opposed to the ETS, and to those businesses struggling to comply with the looming Feb. 9, 2022 testing deadline.
Recall that the ETS would have required covered large employers with 100 or more employees to implement either a mandatory vaccine policy, or a mandatory policy for employees to choose to get vaccinated or undergo weekly testing. It also sought to require covered employers to provide paid time off for employees to get vaccinated and to recover from vaccine-related side effects. Estimates suggested that the ETS would have impacted 84 million workers nationally.
Now that the Supreme Court’s order is effective, it is important to be clear about what the order does and what it does not do.
The order reinstates a temporary nationwide block that stops OSHA from further enforcement of its ETS. This means that at this time, OSHA will not continue to enforce the ETS deadlines listed on its website, while future litigation resumes at the district court level.
The order does not:
• provide final resolution of the ETS litigation;
• stop OSHA from taking future action to implement or enforce the ETS if OSHA achieves a successful outcome in future litigation;
• stop OSHA from issuing a different, more targeted version of the ETS for certain high-risk businesses;
• prevent employers from implementing internal COVID-19 safety or vaccine policies, if they choose to do so, and so long as those policies comply with local, state and federal laws;
• require employers to unwind any validly implemented policies already in place with their workforces;
• affect any local or state vaccine mandates that require COVID-19 vaccination or testing for certain employers.
The result is that covered employers find themselves in a holding pattern while the ETS litigation resumes at the U.S. Court of Appeals for the Sixth Circuit. Over the next few weeks or months, the Sixth Circuit will either issue a more permanent ETS injunction, or allow some or all of the ETS to go into effect at a future date.
Covered employers should monitor this litigation closely. That said, given the strength of the wording against the ETS contained in the Supreme Court’s order, expect that the Sixth Circuit court will follow the lead of the Supreme Court and block ETS implementation more permanently — but again, the final outcome remains to be seen.
In the second order issued by the Supreme Court on Jan. 13, the Court ruled exactly opposite to its first order, perhaps splitting the difference. The Court ruled that the Centers for Medicare & Medicaid Services’ vaccine mandate, requiring employee vaccination at 21 types of Medicare and Medicaid certified health care businesses, was validly implemented within the scope of that agency’s authority.
The high court found that unlike OSHA’s ETS, the CMS mandate was narrowly tailored and fell squarely within the authority Congress had conferred on that agency.
The high court’s ruling means the CMS mandate is now live nationwide and effective in all states. Any state rules contrary to the CMS mandate are now presumably preempted and CMS-covered healthcare employers who have not done so previously should immediately look to comply with the CMS mandate and require employees to be vaccinated.
Like the ETS, further CMS mandate litigation is certain to occur, but unlike the ETS, expect that the CMS mandate will survive scrutiny and it will remain operative going forward. Stay tuned.
• Ryan Haws, an attorney at LightGabler in Camarillo, practices in the areas of employment law advice and counsel and employment litigation. He can be reached at email@example.com.