The News

On Thursday, January 13, 2022, the Supreme Court announced two major decisions regarding vaccine requirements impacting millions of US workers. In one ruling, the Court blocked enforcement of the “vaccinate-or-test” Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA), which requires employers with 100 or more employees to be vaccinated against COVID-19 or tested on a weekly basis. The 6-3 ruling does not speak specifically to the legality of vaccine requirements themselves, but rather OSHA’s power to impose the rule, and kicks the case back to the 6^th Circuit Court of Appeals for further action. However, given the timeframe of the rule—as an Emergency Temporary Standard it can only be in place for six months without further action—and the clear signal from the Supreme Court, it is unlikely that the Biden Administration will continue to fight to reinstate the ETS to impose the rule.

Also announced on Thursday was a ruling to uphold workplace vaccination requirements for healthcare workers by affirming the authority of the Centers for Medicare and Medicaid Services (CMS) to require vaccination for certain workers in participating facilities.

Neither of these decisions impact the vaccine requirement for federal workers, contractors, or servicemembers.

The Background

In November 2021, the Biden Administration announced COVID-19 vaccination requirements for certain employment settings through rules issued by OSHA and CMS. These rules have been challenged in lower courts across the United States, making it unclear whether they would be fully implemented. Given the urgency of the issue and need for clarity, the Supreme Court held a special hearing to consider the legality of the OSHA and CMS requirements. Further detail about each of the rules, as proposed, is below.

• Occupational Safety and Health Administration’s (OSHA) “Test-or-Vaccinate” Emergency Temporary Standard (ETS):
  • Blocked by Supreme Court ruling announced on January 13, 2022
  • The regulation would have required employees at large employers (those with 100 or more employees) to either be vaccinated against COVID-19 or undergo weekly testing. The requirement, which would have applied to over 80 million workers, met resistance in many states. In a 6-3 vote, the Supreme Court effectively blocked enforcement of the regulation, arguing that OSHA does not have the power to enact such broad regulations.
    
• Centers for Medicare and Medicaid Services (CMS) Healthcare Worker Vaccination Requirement:
  • Upheld by Supreme Court ruling announced on January 13, 2022
  • Requires certain healthcare workers at Medicare and/or Medicaid participating facilities to be vaccinated against COVID-19. This regulation covers more than 17 million workers at 76,000 facilities across the country. In the 5-4 vote, the Court affirmed the agency’s authority to issue such requirements.

The Takeaway

• The Supreme Court has a history of upholding vaccine requirements in certain settings. While the ruling to block implementation of OSHA’s “vaccinate-or-test” rule for large employers was not specific to the validity and legality of the vaccine requirements themselves, but rather the agency’s power to issue rules like these, it is a deviation from previous rulings. Some experts fear this will have a chilling effect on vaccine requirements in the workplace and note that the decision to block OSHA’s rule undermines the agency’s ability to issue evidence-based, public health backed policies to ensure a safe and healthy workforce. This ruling could have further ramifications beyond vaccination and the COVID-19 pandemic, as it indicates a diminished role for OSHA in issuing workplace safety requirements. With the OSHA rule blocked, attention will shift to state, localities, and employers who may still adopt rules around COVID-19 vaccination requirements.
• The rule issued by CMS related to healthcare workers will remain in effect. Facilities that participate in Medicare or Medicaid will be expected to comply and should follow guidance set forth by the agency.

The promotion and administration of COVID-19 vaccines is an ongoing and essential strategy in halting the pandemic. Local health departments serve the vital role of being the source for timely and accurate public health information for businesses, healthcare facilities and community members in their jurisdiction. As they’ve done throughout the COVID-19 response, health departments and their staff will continue to perform the essential services of not only providing access to vaccination, but also education and communications on the latest guidance and recommendations in their local contexts.