US Supreme Court Halts OSHA Vaccine-or Test Mandate, But Allows CMS Vaccination Mandate to Proceed

Published for Coates' Canons on January 18, 2022.

On Thursday, January 13, 2022, the U.S. Supreme Court temporarily blocked the federal Occupational Safety and Health Administration’s (OSHA’s) COVID-19 vaccination-or-testing mandate while allowing the federal Centers for Medicare and Medicaid Services’ (CMS’s) vaccine mandate to go forward. The federal contractor vaccination mandate remains temporarily blocked in the lower courts as litigation proceeds. To learn what this means for North Carolina local government employers, read on.

OSHA’s Vaccination-or-Testing Mandate

In a 6-3 decision, the U.S. Supreme Court stayed (temporarily blocked) OSHA’s vaccination-or-testing mandate for employers with 100 or more employees. The stay order sent the challenge to the mandate back to the federal Sixth Circuit Court of Appeals for further proceedings – hence, the use of the word “temporarily” above. The Court found that the U.S. Department of Labor and OSHA were unlikely to prevail in the court below because the mandate exceeded the authority that Congress granted to the Department of Labor in the Occupational Safety and Health Act. The Court acknowledged OSHA’s authority to regulate workplace safety and hazards but found that the vaccination-or-testing mandate was an attempt to enact a broader public health and safety mandate not limited to the workplace. Although this decision was about whether to temporarily block the mandate while litigation proceeds, it makes clear that the Supreme Court is likely to strike down the OSHA mandate should the it end up before the Court as part of an appeal of a final lower court decision. The consensus view of employment lawyers and media analysts is that OSHA mandate is dead. You can read the Supreme Court’s decision here.

The OSHA mandate never took effect in North Carolina because North Carolina has a State Plan Agreement with OSHA. As part of the State Plan, North Carolina has agreed to issue regulations that are as effective (if not more effective) than OSHA’s regulations on a given hazard. Unlike federal OSHA, regulations issued by the North Carolina Division of Occupational Safety and Health (NC OSH) cover both private and government employers. NC OSH has acknowledged the Supreme Court’s decision on its webpage and says it will continue to monitor developments. Although technically NC OSH could issue its own independent regulations requiring vaccination or testing, it has given no indication that it plans to do so.

The Supreme Court’s decision does not limit a local government’s ability to adopt its own mandatory vaccination requirement or a vaccination or testing requirement. It does not place any new requirements on employers offering vaccination incentives. Each local government is free to adopt vaccination, masking or other COVID-19 prevention strategies as it sees fit for its workforce. For more on mandatory vaccination or vaccination and testing policies, see here, here, and here.

The CMS Vaccination Mandate

On the same day but in a different case, the U.S. Supreme Court lifted the temporary block on the CMS mandatory vaccination rule that was in effect in several states, but not in North Carolina. Here, the Court found that Congress had delegated authority to the U.S. Department of Health and Human Services and CMS to adopt such a rule. You can read the Supreme Court’s CMS decision here.

Nothing changes here in North Carolina because North Carolina was never subject to a stay on the CMS mandate. Local health departments and social services departments that house the following services may have employees subject to the CMS vaccination mandate: home health agencies, hospice, infusion services, clinics, rehabilitation agencies, and public health agencies providing outpatient physical therapy and speech-language pathology services, and Rural Health Clinics (RHCs) and Federally Qualified Health Centers (FQHCs). For more on the CMS vaccination mandate, see here. CMS has extended its compliance deadlines. Employees receiving either the two-dose Pfizer or two-dose Moderna vaccine must now have received the first dose by January 27, 2022, and the second dose by February 28, 2022.

The Federal Contractor Mandate

President Biden’s Executive Order directing federal contractors to require vaccination of certain employees remains on hold nationwide while challenges to it are litigated. For more on the substance of the federal contractor mandate and on whether it applies to local governments, see here.

Topics - Local and State Government