SCOTUS Stays OSHA Vax Mandate, not CMS Mandate

• SCOTUS stayed the OSHA mandate, meaning OSHA cannot enforce the mandate during the litigation, and employers do not have to follow the mandate in their workplaces during the stay.

• SCOTUS did not stay the CMS mandate, meaning CMS can enforce the mandate nationwide, and covered healthcare employers must comply even while the litigation continues.
  
  

OSHA MANDATE

CMS MANDATE

Overview of OSHA Mandate Decision

A majority (6) of the justices supported a stay, finding it likely that OSHA exceeded its authority in imposing the mandate. Highlights include:

• OSHA has authority to “set workplace safety standards.” COVID-19 is not a workplace hazard; it is a “universal risk” as it is everywhere.
• OSHA overreached with a “blunt instrument,” subjecting 84.2 million workers to the mandate just because they work for large employers, not because of any industry-specific risk.
• Congress could have enacted a mandate, but did not. “In fact, a majority vote of the Senate disapprov[ed]” the vaccine mandate in December.

The Court’s opinion is available here.

SCOTUS’ stay of the OSHA mandate does not prevent employers from implementing vaccine mandates in their own workplaces, if they wish, unless there is a state law that restricts employers’ discretion. Currently, employers in New Hampshire and the other New England state are generally free to voluntarily adopt mandates. However, there are many bills proposed in the New Hampshire legislature that, if passed, would prohibit vaccine mandates. We are keeping an eye on those bills and will keep you informed.

Overview of the CMS Mandate Decision

A majority (5) of the justices concluded the mandate should be implemented, and not stayed, because it is likely that CMS has the authority to issue the mandate. Highlights include:

• CMS can impose requirements necessary for the health and safety of patients receiving healthcare paid for by Medicare or Medicaid funds, and the mandate is necessary because unvaccinated staff “pose a serious threat to the health and safety of patients.”
• Facilities participating in Medicare and Medicaid have to comply with many conditions for safe healthcare, including other infectious disease control measures, and the mandate fits “neatly within” CMS’ statutory authority.

The Court’s opinion is available here.

Now that CMS has the ability to enforce the mandate nationwide, and the stay that covered New Hampshire and 24 other states has been lifted, covered healthcare facilities must comply. Requirements and deadlines can be found here:  CMS Mandate Guidance and Details.

If you have any additional questions about these decisions please contact NHADA Bronze partner Cook, Little, Rosenblatt & Manson, p.l.l.c., via their NHADA Employment Law Hotline at 603-206-4901.