In short, for now, at least, employers covered by the ETS are not required to comply with it. However, with the Supreme Court's decision, the legal challenges to the ETS are not necessarily over.

On January 13, 2022, the United States Supreme Court issued two important decisions on the vaccine mandate, impacting the emergency temporary standard (ETS) issued by the federal Occupational Safety and Health Administration (OSHA), which applied to employers with 100 or more employees, and the Centers for Medicare & Medicaid Services Interim Final Rule (CMS Rule), impacting health care workers. More details are below.

Supreme Court Stays Enforcement of the OSHA ETS Nationwide

As previously detailed here, on November 4, 2021, OSHA issued an emergency temporary standard (ETS) applicable to businesses with 100 or more employees. The ETS required, among other things, that covered businesses implement a mandatory vaccine policy for most employees, or alternatively, a policy requiring unvaccinated workers to produce a weekly negative COVID-19 test and wear a mask in the workplace. The ETS was stayed nationwide on November 12, 2021, by order of the U.S. Court of Appeals for the Fifth Circuit. The various legal challenges to the ETS were subsequently consolidated in the U.S. Court of Appeals for the Sixth Circuit, which dissolved the Fifth's Circuit stay on December 17, 2021, as we reported here.

Almost immediately after the Sixth Circuit's action, several emergency appeals were filed with the United States Supreme Court requesting the Court to reinstitute the stay. The Supreme Court received briefs and heard oral arguments on January 7, 2022.

On January 13, 2022, in a per curiam opinion, the Supreme Court stayed further enforcement of the ETS. In its holding, the Supreme Court found that OSHA did not have the authority to enact the ETS because, among other things, it was not narrowly focused on occupational risks faced by workers, and instead was more akin to a general public health measure, which is not within OSHA's authority. The Supreme Court distinguished the requirements contained in the ETS from other OSHA regulations – such as those that address fire and sanitation risks – because vaccinations "cannot be undone at the end of the workday."

What Does This Mean for Covered Employers?

In short, for now, at least, employers covered by the ETS are not required to comply with it. However, with the Supreme Court's decision, the legal challenges to the ETS are not necessarily over. The challenges will now return to the Sixth Circuit for further proceedings.

In addition, the Supreme Court made clear that other government entities – such as states and municipalities – could take action with similar requirements to address the COVID-19 pandemic. Several states with OSHA-approved state plans have already adopted their own standards or adopted standards similar to the ETS. The Supreme Court's ruling does not automatically invalidate any actions taken by those state plans. Employers will want to monitor actions from these state plans and also watch for laws and orders passed at the state and municipal levels that could contain similar requirements as those that were in the ETS. Employers should also remain mindful that, while the ETS is stayed, OSHA still has general enforcement authority over employers to ensure workers are adequately protected in the workplace from serious physical harm.

Supreme Court Lifts Stay of CMS Rule in 24 States, Allowing CMS Rule to Move Forward Throughout the Country

Also on January 13, 2022, the Supreme Court issued a 5-4 decision, lifting injunctions that had blocked the Centers for Medicare & Medicaid Services Interim Final Rule (CMS Rule) in 24 states. The CMS Rule was issued on November 4, 2021 and requires COVID-19 vaccination for workers at healthcare facilities that participate in Medicare and Medicaid programs.

Following the issuance of the CMS Rule, the rule was legally challenged, and lower courts issued multiple injunctions enjoining the CMS Rule in Alabama, Alaska, Arizona, Arkansas Georgia, Idaho, Iowa, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, New Hampshire Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming. The CMS previously announced it would enforce the CMS Rule in the remaining 25 states where the rule was not enjoined and the District of Columbia. The Texas challenge to the CMS Rule was dismissed on January 19, 2022.

In lifting the lower court injunctions, the Supreme Court stated Congress has authorized the CMS to impose conditions on the receipt of Medicaid and Medicare funds that are "necessary in the interest of the health and safety of individuals who are furnished services." The Court held that ensuring providers take steps to avoid transmitting COVID-19 to their patients is consistent with the "fundamental principle" of the medical profession: do no harm.

On January 14, 2022, the CMS issued Memorandum QSO-22-09-ALL providing guidance for the following states: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia and Wyoming.

The following compliance deadlines apply to Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia and Wyoming:

  • By February 14, 2022, all covered staff must have received the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine or have a pending request for, or have been granted, a qualifying exemption;
  • By March 15, 2022, all covered staff must have received the second dose of two-dose COVID-19 vaccine (if applicable) or have been granted a qualifying exemption

In the CMS' Memorandum QSO-22-11-AA, the following compliance deadlines apply to Texas:

  • By February 22, 2022, all covered staff must have received the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine or have a pending request for, or have been granted, a qualifying exemption;
  • By March 21, 2022, all covered staff must have received the second dose of two-dose COVID-19 vaccine (if applicable) or have been granted a qualifying exemption

In the CMS' Memorandum QSO-22-07-ALL, the following compliance deadlines apply to all other states, including the District of Columbia:

  • By January 27, 2022, all covered staff must have received the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine or have a pending request for, or have been granted, a qualifying exemption;
  • By February 28, 2022, all covered staff must have received the second dose of two-dose COVID-19 vaccine (if applicable) or have been granted a qualifying exemption.

Covered Facilities:

The CMS Rule applies to the following Medicare and Medicaid certified providers and suppliers:

  • Home Health Agencies
  • Home Infusion Therapy Suppliers
  • Hospices
  • Long Term Care Facilities
  • Hospitals
  • Ambulatory Surgery Centers
  • Community Mental Health Centers
  • Comprehensive Outpatient Rehabilitation Facilities
  • Critical Access Hospitals
  • End-Stage Renal Disease Facilities
  • Intermediate Care Facilities for Individuals with Intellectual Disabilities
  • Public Health Agencies as Providers of Outpatient Physical Therapy and Speech-Language Pathology Services
  • Psychiatric Residential Treatment Facilities
  • Programs for All-Inclusive Care for the Elderly Organizations
  • Rural Health Clinics/Federally Qualified Health Centers

Staff Coverage

The vaccination requirement applies to eligible staff working at a facility that participates in Medicare and Medicaid programs, regardless of clinical responsibility or patient contact. The requirement includes all current staff as well as any new staff who provide any care, treatment, or other services for the facility and/or its patients. This includes facility employees, licensed practitioners, students, trainees, volunteers, and individuals under contract or other arrangements.

Next Steps

Companies that are covered by the CMS Rule will want to immediately prepare for the upcoming vaccination deadlines covering their workers. In addition, while the ETS is currently stayed, employers will want to monitor further activities on the topic and check for any state or local requirements that may impact vaccinations, testing and other COVID-19 measures that need to be implemented with their workforce.

For more information, join us for a webinar on these latest updates here and visit ADP's Employer Preparedness Toolkit for COVID-19 here.

ADP Compliance Resources

ADP maintains a staff of dedicated professionals who carefully monitor federal and state legislative and regulatory measures affecting employment-related human resource, payroll, tax and benefits administration, and help ensure that ADP systems are updated as relevant laws evolve. For the latest on how federal and state tax law changes may impact your business, visit the ADP Eye on Washington Web page located at www.adp.com/regulatorynews.

ADP is committed to assisting businesses with increased compliance requirements resulting from rapidly evolving legislation. Our goal is to help minimize your administrative burden across the entire spectrum of employment-related payroll, tax, HR and benefits, so that you can focus on running your business. This information is provided as a courtesy to assist in your understanding of the impact of certain regulatory requirements and should not be construed as tax or legal advice. Such information is by nature subject to revision and may not be the most current information available. ADP encourages readers to consult with appropriate legal and/or tax advisors. Please be advised that calls to and from ADP may be monitored or recorded.

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Updated on January 24, 2022

Tags: legislative