Key Highlights On The U.S. Supreme Court Decision Concerning OSHA and CMS COVID-19 Vaccine Mandates

On January 13, 2022, the U.S. Supreme Court reached split decisions on vaccine mandates issued by the Occupational Safety and Health Administration (“OSHA”) and the Centers for Medicare & Medicaid Services (“CMS”), respectively.  Here are some of the key highlights.

CMS Mandate for Healthcare Workers is Upheld

  • In November 2021, the Secretary of Health and Human Services, which administers Medicare and Medicaid programs, announced that in order to receive Medicare and Medicaid funding, participating facilities must ensure their staff are vaccinated against COVID-19, unless exempt for medical or religious reasons or doing full-time telework.
  • In yesterday’s ruling, the Court found the Secretary is authorized to promulgate such a rule under its most basic function of ensuring healthcare providers caring for Medicare and Medicaid patients protect their patients’ health and safety.
  • Such providers include but are not limited to hospitals, nursing homes, ambulatory surgical centers, hospices, and rehabilitation facilities.
  • A facility’s failure to comply with the rule may lead to monetary penalties, denial of payment for new admissions, and ultimately, termination of participation in the programs.

OSHA Vaccine Mandate for Large Private Employers is Not Upheld

  • On November 5, 2021, OSHA published its vaccination mandate requiring employers with at least 100 employees to ensure employees either 1) receive a COVID-19 vaccine or 2) show a negative test at least once a week and wear a face covering at work.
  • In yesterday’s decision to stay the mandate, the Court ruled that the mandate is not authorized by the Occupational Safety and Health Act enacted by Congress, which empowers the Secretary of Labor to set and regulate workplace safety standards, not broad public health measures.
  • Critically, yesterday’s ruling does not preclude private employers from enacting their own specific policies on a voluntary basis to protect health and safety.

Impact on New Jersey Public Entities

  • Implementation of vaccine mandates as to New Jersey public entities will continue to be guided by New Jersey’s PEOSHA rules.
  • As of this writing, we continue await formal guidance from the State as to whether specific statewide vaccine mandates for public entities will be implemented.

Brown & Connery LLP is available to assist with these and related COVID-19 and employment needs.  As always, please let us know if you have any questions. 

By:  William F. Cook, Partner at Brown & Connery, LLP