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Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

January 14, 2022

SCOTUS Strikes Down OSHA Vaccinate-or-Test Rule, but Allows CMS Mandate to Proceed

On January 13, 2022, the United States Supreme Court issued two highly anticipated decisions regarding the Occupational Safety and Health Administration’s (OSHA) vaccinate-or-test rule and the Centers for Medicare & Medicaid Services’ (CMS) vaccine mandate.

As noted in our prior alert, a divided three-judge panel of the US Court of Appeals for the Sixth Circuit previously lifted the injunction on OSHA’s Vaccination and Testing Emergency Temporary Standard (OSHA Rule), citing increased infection rates and concern surrounding the Delta and Omicron variants.

On January 13, 2022, in National Federation of Independent Business v. Department of Labor, et al., 595 U.S. ____ (2022), the United States Supreme Court issued a stay of the OSHA Rule, referring to it as a “blunt instrument” beyond the agency’s statutory authority. The 6–3 majority noted that, while OSHA can depart from its normal notice-and-comment procedures for emergency temporary standards, this departure is only permitted in the narrowest of circumstances: where employees are exposed to grave danger (either from toxic or dangerous agents) and where the emergency standard is needed to protect employees from that danger. In the court’s view, the circumstances surrounding the OSHA Rule did not justify the wide reach of the mandate’s “indiscriminate approach” in failing to distinguish between certain industries and occupations.

The court went on to explain that OSHA has the authority to enact workplace safety standards, not public health measures. In equating the OSHA Rule with a public health mandate, the court opined that the kind of universal risk associated with contracting COVID-19 in the workplace is “no different than the day-to-day dangers that all face from crime, air pollution, or any other number of communicable diseases.” In short, the court determined that the OHSA Rule was an impermissible attempt by the agency to “regulate the hazards of daily life.” While there will be further proceedings, the issuance of the stay and the reasoning of the court as reflected in the decision is likely the death knell for the OSHA Rule. 

The court reached the opposite result in permitting the CMS vaccine mandate (CMS Mandate) to proceed. In issuing its decision in Biden v. Missouri and Becerra v. Louisiana, 595 U.S. ___ 2022, a 5–4 majority held that, unlike the OSHA Rule, the CMS Mandate “fit neatly” within the statutory authority afforded to CMS to condition funds to providers while requiring these providers have an infection prevention and control program. The court also noted that the secretary of the US Department of Health and Human Services issued the CMS Mandate as a final interim rule and that the secretary had established good cause to do so. In support of its finding that the CMS Mandate was not arbitrary and capricious, the court acknowledged the risk of the spread of COVID-19 from providers to patients and the commonality of requiring vaccinations for health care workers for other diseases.

It is important for employers to know that, while the court struck down the OSHA Rule and allowed the CMS Mandate to proceed, the court directed the lower circuit courts to resolve the ultimate merits of the actions. We anticipate further litigation on the permissibility of the mandates. Barclay Damon will continue to monitor the latest developments regarding federal and state COVID-19 vaccination mandates.

If you have any questions regarding the content of this alert, please contact Ari Kwiatkowski, associate, at; Bob Heary, Labor & Employment Practice Area chair, at; or another member of the firm’s Labor & Employment Practice Area.

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