Supreme Court Decisions on Federal COVID-19 Vaccination Mandates

February 14, 2022

The Supreme Court has ruled on two separate Federal COVID-19 vaccination mandates – the OSHA mandate for large employers and the separate CMS mandate for covered healthcare providers. The OSHA ruling was struck down and the CMS ruling was upheld. A good summary of the rulings is provided in this linked article: 

https://slate.com/news-and-politics/2022/01/supreme-court-biden-roberts-kavanaugh-vaccine-mandate.html

Under the CMS mandate healthcare providers certified to receive Medicare or Medicaid reimbursement will be required to vaccinate all employees – allowing for medical and religious exemptions. The CMS mandate requires each provider to prepare and submit a vaccination implementation plan and to assure on completion of employee vaccination on an accelerated schedule. These requirements are added to Conditions of Participation in CMS programs. 

The original deadline for implementation of the mandate was early January. Theoretically, providers in most states will be held responsible for meeting that deadline. Later deadlines were established for states party to litigation. The CMS Director has indicated that the deadline for full implementation of the mandate in all remaining states will be March 15. 

CMS enforcement may focus initially on failure to submit implementation plans. Any provider that fails to submit an acceptable plan could be subject to progressive sanctions. Completion of implementation plan will be monitored by each state’s certification agency. These agencies would identify non-complying providers as part of routine certification surveys or in response to complaints. Many governors are on record as opposing vaccination mandates. This may put pressure on state certification agencies charged with monitoring compliance 

The separate OSHA vaccination mandate was issued in line with OSHA’s general mission permitting it “to protect employees from a “grave danger” resulting from “physically harmful” “agents” or “new hazards.” The Court ruling striking down that mandate appears to distinguish the dangers of COVID-19 transmission from the authorized mission of OSHA. It suggests that Congress would need to draft specific legislation recognizing COVID-19 as a hazard and directing vaccination as a legitimate response to mitigating that hazard.  

Note that individual employer mandates for workplace vaccination are not affected by these decisions. Similarly, state mandates for vaccination are not addressed by the decision. Finally, it is unclear how this decision might extend to a separate OSHA Emergency Temporary Standard (ETS) – this one requiring appropriate ventilation, PPE and other COVID-19 specific hazard mitigation. This ETS was in place for six months, ending December, 2021: 

https://www.jacksonlewis.com/publication/osha-withdraws-covid-19-healthcare-emergency-temporary-standard-vows-use-general-duty-clause

When OSHA withdrew that ETS, it announced that it would continue to require covered workplaces to comply with the ETS requirements as part of its more general authorized mission. It is unclear if the Supreme Court would agree with that perspective on OSHA authority. 

Date: February 14, 2022 

Tags: COVID-19, Vaccination, Mandate, Health Worker