Update via NAPEO
In early January lawsuits that are aimed at blocking Biden’s vaccination directives for health care workers will be reviewed by the Supreme Court.
On December 22nd, the Supreme Court of the United States (SCOTUS) announced that it will hear challenges to OSHA’s Emergency Temporary Standard (ETS) requiring COVID vaccinations or weekly testing for employers with over 100 employees and the Center for Medicare & Medicaid Services’ (CMS) more blanket vaccination mandate for healthcare workers. The CMS rule requires vaccination for any staff members employed at Medicare- and Medicaid-certified provides and suppliers. If your facility accepts Medicare or Medicaid, or plans to accept them in the future, this rule applies to you.
In addition, the Supreme Court declined to block the rules pending the appeal, meaning the rules remain in effect until SCOTUS issues its decision. Oral arguments will be held for both on January 7, 2022. Given that the OSHA ETS goes back into effect on January 10th and the CMS mandate on January 4th, applicable employers are encouraged to continue preparing for implementation of the OSHA ETS and CMS mandate, immediately.
The 5th Circuit Court of Appeals stayed the OSHA ETS prior to it and all similar cases being consolidated to the 6th Circuit. In a surprise move, the generally conservative 6th Circuit dissolved the stay on December 17th. Given the uncertainty caused by judicial proceedings, OSHA has given applicable employers until January 10, 2022 to come into compliance with the rule. Similarly, in late November, federal courts blocked enforcement of the CMS mandate. However, in another surprise move, the 5th Circuit reinstated the CMS mandate for nearly half the country. Given the judicial split, there is much confusion for healthcare workers across the nation.
The Supreme Court’s decision to hear the cases should bring certainty to employers—one way or the other. In the meantime, applicable employers should continue preparing as if the mandates were in effect, given the consolidated timelines.