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Shot Down

By John S. Gannon, Esq., and Erica E. Flores, Esq.


John S. Gannon

Erica E. Flores

Erica E. Flores

A few weeks ago, the U.S. Supreme Court issued one of the most significant employment-law decisions in recent memory. In a decision that appeared to be driven (at least in part) by political ideologies, the six conservative justices of the court ruled against the Biden administration in the back-and-forth legal battle over an emergency temporary standard (ETS) issued by the Occupational Safety and Health Administration (OSHA).

If it had gone into effect, the ETS would have required workers at companies with 100 or more employees to either be fully vaccinated or tested for COVID-19 at least weekly. According to the court’s majority, however, OSHA likely does not have the authority to issue such a mandate.

“Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases,” the court wrote. “Permitting OSHA to regulate the hazards of daily life — simply because most Americans have jobs and face those same risks while on the clock — would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

Technically, the ETS is not dead — at least not yet. The court did not rule directly on whether the ETS is legally unenforceable. Instead, the court reinstated a hold on OSHA’s ability to enforce the ETS while litigation is pending elsewhere in lower courts.

“Employers have good reasons to consider implementing a vaccine mandate or ‘shot or test’ rule voluntarily.”

U.S. Secretary of Labor (and former Boston Mayor) Marty Walsh issued a forceful statement attacking the decision. “OSHA stands by the vaccination and testing emergency temporary standard as the best way to protect the nation’s workforce from a deadly virus that is infecting more than 750,000 Americans each day and has taken the lives of nearly a million Americans,” he said. “The common-sense standards established in the ETS remain critical, especially during the current surge, where unvaccinated people are 15 to 20 times more likely to die from COVID-19 than vaccinated people. OSHA will be evaluating all options to ensure workers are protected from this deadly virus.”

Walsh’s statement mirrored the dissenting opinion of the three liberal-leaning Supreme Court justices, who argued that COVID presents a “grave danger” to millions of employees and that the ETS is “necessary” to address these dangers.

It remains to be seen whether OSHA will continue to try to defend the ETS in court or withdraw the ETS entirely. Even if OSHA is successful in lower courts, the ETS appears to be doomed once those cases reach the Supreme Court. President Biden’s executive order requiring employees of federal contractors to get vaccinated is also on hold by court order, and its chances of survival look to be pretty slim.

But the ETS is not the only tool available to OSHA to help stop the spread of COVID in the workplace. Indeed, OSHA still has the power under its ‘general duty clause’ to penalize employers that fail to provide a workplace free of hazards that are likely to cause serious harm. Businesses with low vaccination rates and lackluster masking policies could conceivably get cited by OSHA under the general duty clause if it is clear to the agency that COVID is spreading in the workplace. In addition, private parties have filed numerous wrongful-death lawsuits against businesses where employees and/or their family members died of COVID that is believed to have originated in the workplace. Accordingly, employers have good reasons to consider implementing a vaccine mandate or ‘shot or test’ rule voluntarily.


Different Ruling for Healthcare Facilities

And even if the OSHA ETS and the federal contractor executive order are doomed, another Biden administration vaccine mandate is very much alive. Indeed, on the same day the Supreme Court blocked OSHA from enforcing the ETS for large employers, the court ruled that the Centers for Medicare and Medicaid Services (CMS) does have the necessary regulatory authority to require many healthcare facilities to mandate the COVID vaccine for all staff members.

Under the restrictive CMS rule, all employees, licensed providers, contractors, trainees, and volunteers of most Medicare- and Medicaid- certified providers and suppliers must be fully vaccinated for COVID, regardless of whether they perform their duties within the actual facility or provide care directly to patients. The rule covers a host of healthcare providers, including (but not limited to) hospitals, programs of all-inclusive care for the elderly, long-term-care facilities, intermediate-care facilities for individuals with intellectual disabilities, home health agencies, comprehensive outpatient rehabilitation facilities, community mental-health centers, and clinics, rehabilitation agencies, and public-health agencies as providers of outpatient physical therapy and speech-language pathology services.

When does the CMS rule go into effect? Covered facilities must demonstrate that all non-exempt staff have received a first dose of a COVID-19 vaccine by Jan. 27, and that all staff are fully vaccinated by Feb. 28. CMS will consider staff to have been fully vaccinated by the Feb. 28 deadline even if it has not yet been 14 days since they received their final dose. Booster doses are not required, but are recommended.

Covered employers must also develop policies and procedures to document and track staff vaccinations, assess requests for exemptions in accordance with federal law, and collect proper documentation of the need for a medical exemption, and must implement additional safety precautions for any staff members who are entitled to a religious or medical exemption. CMS has not offered substantive guidance as to when an employee or other staff member may be entitled to such an exemption, choosing instead to refer covered facilities to guidance published by the Equal Employment Opportunity Commission.

To avoid civil penalties, denial of payment, and even termination from the Medicare and Medicaid program, covered employers that have not already taken steps toward compliance with the CMS interim final rule should act immediately to develop and implement the necessary policies and procedures, determine staff vaccination status, collect required documentation, and assess requests for religious and medical exemptions.

When in doubt about requested exemptions, employers should also consider consulting experienced employment counsel, who can offer guidance and advice about when an exemption may be legally required for medical or religious reasons and when such an exemption can be lawfully denied.


John Gannon and Erica Flores are attorneys at the law firm Skoler, Abbott & Presser, P.C. in Springfield; (413) 737-4753; [email protected]; [email protected]