January 13, 2022

SCOTUS Rules on OSHA & CMS Vax Rules; EO 14042 Part I: Still on Hold

Here’s a quick summary of where we are on the three vaccine “mandates.”

OSHA’s ETS for employers with 100 or more employees: Today, the U.S. Supreme Court (SCOTUS) issued its ruling and blocked or stayed OSHA’s ETS (COVID-19 vaccination / testing rule) nationwide. This means, it is again on hold. It also means we do not yet have a final answer. The decision was not on the merits of the rule but solely on whether the rule should be blocked until the lower court is able to rule on the merits.

• Quick Recap: On November 12th, the 5th Circuit blocked OSHA’s rule nationwide. On December 17th, the 6th Circuit lifted that stay nationwide and the rule took effect on Monday of this week. As of yesterday, the rule is back on hold nationwide.

• Next Steps: The case now goes back to the 6th Circuit. SCOTUS found, in part, that the petitioner (NFIB) is likely to prevail. If you choose to voluntarily implement the rule or any portion of it, talk to your company’s legal counsel. There are at least 11 states that have restricted private sector employers’ ability to impose certain COVID-19 requirements.

CMS’ Vaccination Rule for Medicare and Medicaid-Covered Facilities: Today, SCOTUS decided to lift the stay that was in place in 25 states. This rule in now back in effect in all 50 states. This story is also not yet finished. These legal challenges now go back to the 5th and 8th Circuits for reconsideration.

Note that on December 28th, CMS announced it extended and relaxed the previous deadline. Click here for more information.

EO 14042, Part I – Vaccination Rule for Covered Federal Gov’t Contractors: On December 7th, this EO was blocked nationwide. On December 15th, a Louisiana court also enjoined the Order but only as it applied to contracts between the federal gov’t and the states of Louisiana, Mississippi, and Indiana. The Safer Federal Workforce Taskforce website continues to report that it will not enforce the order until further notice. However, any of your employees who are working onsite in federal buildings and federally controlled facilities must still follow Federal agency workplace safety protocols when working at those locations.

NOTE: The stay for EO 14042 applies only to Part I: the vaccination mandate. Parts II and III related to face covering (aka masking); physical distancing, and designating a COVID-19 Safety Coordinator are still in play!