Supreme Court to Take Shot at Healthcare and OSHA Vaccine Mandates
January 2022
Supreme Court to Take Shot at Healthcare and OSHA Vaccine Mandates
On December 22, 2021, the Supreme Court of the United States issued orders
granting review of legal challenges to the Occupational Safety and Health
Administration’s COVID-19 Vaccination and Testing Emergency Temporary Standard
(“OSHA ETS”) and the Centers for Medicare and Medicaid Services Omnibus COVID19 Health Care Staff Vaccination Interim Final Rule (“CMS Vaccine Mandate”). In a
rare move, the Supreme Court set an accelerated timeline for the cases, scheduling
oral arguments in both cases on January 7, 2022.
Following a ruling out of the United States Court of Appeals for the Sixth Circuit on
December 17, 2021, OSHA announced that it would not
issue citations for non-compliance with any
requirements of the OSHA ETS before January 10,
2022, and will not issue citations for noncompliance
with testing requirements before February 9, 2022, so
long as an employer is exercising reasonable, good faith
efforts to come into compliance with the OSHA ETS.
While it is unknown whether the Supreme Court will be
able to issue a ruling by OSHA’s January 10, 2022
compliance date, the Supreme Court’s expedited schedule seems to indicate that it
is attempting to give employers some finality concerning their obligations under the
federal mandates.
Background: OSHA’s Vaccine-or-Test Mandate for Large Employers
OSHA published an ETS on Nov. 5, 2021, that applies to employers in all
workplaces that are under OSHA’s authority and jurisdiction that have more than
100 employees companywide. The ETS requires, with certain exceptions, that
covered employees either 1) be fully vaccinated against COVID-19, or 2) wear face
coverings and submit weekly COVID-19 test results to the employer. (For additional
information about the ETS, see Holland & Knight’s previous alert, “OSHA Issues
Anticipated Emergency Temporary Standard Regarding COVID-19 Vaccination and
Testing,” Nov. 5, 2021.)
Various constituencies, including employers, employees, religious organizations,
and trade groups quickly challenged the ETS in numerous
circuit courts across the country. Just one day after the ETS
became effective, the U.S. Court of Appeals for the Fifth
Circuit stayed the ETS’ enforcement. After the Fifth Circuit
stayed the ETS, the judicial panel on multidistrict litigation
randomly selected the Sixth Circuit to hear all challenges to
the ETS. The applicable statute governing challenges to
enforcement of agency orders permits the court randomly
selected to hear challenges to enforcement of final agency action — in this case, the
Sixth Circuit — to revoke a stay issued by a prior appellate court.
On Dec. 17, 2021, the Sixth Circuit lifted the Fifth Circuit’s stay of the ETS, meaning
it is again in effect and enforceable. Dozens of diverse petitioners immediately filed
applications before the Supreme Court to enjoin the Sixth Circuit’s decision. The
petitioners argue that an injunction would aid the Supreme Court’s jurisdiction
because it was the court that likely would fully and finally resolve the issue. They
contend that they face “critical and exigent circumstances” if the Fifth Circuit’s stay
were lifted and assert that they are likely to succeed on the merits and would suffer
irreparable injury absent relief.
Shortly thereafter, OSHA issued a statement clarifying large employers’ compliance
deadlines. The statement provides that OSHA will not issue citations for
noncompliance with any of the ETS’ requirements before Jan. 10, 2022, and will not
issue citations for noncompliance with the testing requirements before Feb. 9, 2022,
provided that employers exercise reasonable, good faith efforts to comply with the
standard.
Background: CMS’ Vaccine Mandate for Healthcare Employers
Several states have sued in various federal courts, with mixed results thus far. A
Florida district court declined to enjoin the healthcare vaccine
mandate, and so did the Eleventh Circuit on appeal. In contrast,
a Missouri district court enjoined the mandate for the 10 plaintiff
states,1 and the Eighth Circuit declined to lift that injunction.
Soon thereafter, a Louisiana district court enjoined the mandate
nationwide; the Fifth Circuit declined to lift the injunction but narrowed it to the 14
plaintiffs states.2 Finally, a Texas district court has enjoined the mandate in Texas.
On Dec. 16, 2021, the government requested that the Supreme Court stay the
injunctions issued by the Missouri and Louisiana district courts — that is, to stay the
stays, which would let CMS’s healthcare-worker vaccine mandate go into effect in the
plaintiff states pending further litigation.
The Supreme Court’s Unprecedented Response for Oral Argument
On Dec. 22, 2021, the Supreme Court responded to both sets of stay requests by
requesting oral argument on Jan. 7, 2022, as to whether to issue stays. Typically,
stays are granted or denied in short statements by the court or the circuit justice
assigned. Hearing oral argument on a stay has not occurred for at least decades.
The Supreme Court’s request for oral argument suggests that it views these cases as
of paramount importance to the country and its legitimacy
and transparency. Oral argument on the stay may also be
the court’s way of acknowledging that a merits decision may
come too late to be of practical use. Even if it were to
eventually rule some combination of the mandates
unenforceable, that would be little solace to employers who
had already complied. And likewise, if the mandates were upheld, that would be small
comfort to the government’s interests of protecting people from COVID-19 in the
meantime. The oral argument will also give valuable insight into how the court would
rule on the merits — though, as just noted, the realities of the situation may make
an eventual merits decision less important than this decision on a stay.
What Should Employers Do Now?
Given the short deadlines, large employers that have not already begun preparing to
comply with the ETS should begin determining employees’ vaccination
status, keeping confidential records documenting employees’
vaccination status, and outlining testing procedures and masking
requirements for unvaccinated employees. Unprepared employers
faced with upcoming deadlines may have to implement the weekly testing alternative,
at least to provide for more time for their workforces to be vaccinated.
Although the CMS requirement remains effective in 25 states, CMS announced that
it would suspend implementation and enforcement of the requirement pending the
ongoing litigation. If the Supreme Court lifts the stays issued in the Fifth and Eighth
circuits, CMS is likely to begin taking steps to implement and enforce the
requirement.
Finally, the litigation regarding OSHA’s large-employer vaccination ETS and the CMS
vaccination requirement does not impact the status of OSHA’s
vaccination requirements for federal contractors, which is currently
stayed nationwide, as affirmed by the Eleventh Circuit on Dec. 17,
2021. It also does not affect the status of the U.S. Department of
Health and Human Services (HHS) requirements for vaccination and universal maskwearing in the Head Start, Early Head Start, Early Head Start-Child
Care Partnership, and American Indian and Alaska Native, and
Migrant and Seasonal Head Start programs, under which staff,
contractors working with children and volunteers must be fully
vaccinated by Jan. 31, 2022.
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