Yesterday, the United States Supreme Court issued an emergency stay of the Biden Administration\u2019s COVID-19 vaccination and testing and masking requirements for employers with 100 or more employees (the \u201cETS\u201d).\u00a0 \u00a0<\/em><\/p>\n In writing the decision for the majority, Justice Kavanaugh noted, \u201c[a]dministrative agencies are creatures of statute.\u00a0 They accordingly possess only the authority that Congress has provided.\u201d\u00a0 While acknowledging that Congress has \u201cindisputably\u201d given the Occupational Safety and Health Administration (\u201cOSHA\u201d) the power to regulate occupational dangers, \u201cit has not given that agency the power to regulate public health more broadly.\u201d\u00a0 The opinion went on to describe the ETS as a \u201cblunt instrument\u201d that was not tailored in any way to particular workforces or opportunities for exposure.\u00a0 The Supreme Court noted that the challengers to the ETS are likely to succeed on the merits of their claim that OSHA lacked the authority to impose the ETS in the first place.<\/p>\n In the concurrence, Justice Gorsuch, joined by Justices Thomas and Alito, criticized the ETS as federal overreach, observing that the federal government\u2019s powers, \u201care not general but limited and divided.\u201d\u00a0 Referring to OSHA\u2019s attempt to, \u201cregulate not just what happens inside the workplace but induce individuals to undertake a medical procedure that affects their lives outside the workplace,\u201d Justice Gorsuch observed that such matters have typically been regulated at the state level.\u00a0 The concurrence concluded by noting:<\/p>\n The question before us is not how to respond to the pan\u00addemic, but who holds the power to do so. The answer is clear: Under the law as it stands today, that power rests with the States and Congress, not OSHA. In saying this much, we do not impugn the intentions behind the agency\u2019s mandate. Instead, we only discharge our duty to enforce the law\u2019s demands when it comes to the question who may govern the lives of 84 million Americans.<\/p><\/blockquote>\n In a scathing dissent, Justices Breyer, Sotomayor, and Kagan, observed that, in granting the challengers\u2019 request to stay the ETS for the duration of the underlying litigation, the majority was, \u201ccontravening clear legal principles and itself causing grave danger to the Nation\u2019s workforce.\u201d\u00a0 The dissent dismissed the majority\u2019s distinction between dangers that occur only in the workplace versus dangers that are endemic, \u201c[t]he statute does not require that employees are exposed to those dangers only while on the workplace clock. And that should settle the matter\u2026what the majority today does impose a limit found no place in the governing statute.\u201d\u00a0 The dissenting Justices noted that courts may not issue a stay unless the balance of the harms and the public interest support doing so.\u00a0 \u201cHere they do not.\u00a0 The lives and health of the Nation\u2019s workers are at stake.\u00a0 And the majority deprives the Government of a measure it needs to keep them safe.\u201d<\/p>\n For now, these employers are under no obligation to comply with the ETS.<\/p>\n The case now goes back to the Sixth Circuit to make a decision about whether OSHA did have the authority to issue the ETS. (Remember, the question that went to the Supreme Court was just the issue of whether the stay<\/em> should remain in place). While no one can predict the ultimate outcome with certainty, it is safe to assume the Supreme Court\u2019s decision will at least influence the Sixth\u2019s Circuit next ruling.<\/p>\n However, the Supreme Court\u2019s decision leaves open the questions of whether the states will take steps to regulate employers with respect to vaccine mandates, and whether OSHA will pursue other options such as issuing a COVID-19 standard using its full, non-emergency regulatory authority. \u00a0In the meantime, this is one thing to remove from your to-do list.<\/p>\n In a companion decision, the Supreme Court upheld the vaccine mandate issued by the Secretary of Health and Human Services (commonly referred to as the \u201cCMS Rule\u201d).\u00a0 The Supreme Court held that the CMS Rule simply amplifies existing conditions of participation in federal health care programs for a limited set of health care providers whose contractual participation in those programs was already subject to an obligation to maintain infection control programs.\u00a0 As noted in the Opinion, the CMS Rule did not seek to expand CMS\u2019s authority beyond those categories of facilities or beyond the realm of \u201caddress[ing] the safe and effective provision of healthcare,\u201d in a manner parallel to the asserted attempt of OSHA to expand its writ beyond workplace hazards to environmental hazards.\u00a0 Those physician practices and other providers which participate in federal health care programs but are not considered \u201cfacilities\u201d are still not subject to the CMS Rule, so this ruling does not affect their ongoing participation in those programs.\u00a0 The CMS Rule will now be returned to the lower courts for a decision as to whether it will be upheld permanently.\u00a0 In the meantime, employers subject to the CMS Rule should continue to comply with it.<\/p>\n Bowditch will closely monitor any developments on this issue and update you promptly. Employers with questions should consult with their Bowditch Labor & Employment attorneys.<\/p>\n","protected":false},"excerpt":{"rendered":" OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard Yesterday, the United States Supreme Court issued an emergency stay of the Biden Administration’s COVID-19 vaccination and testing and masking requirements for employers with 100 or more employees (the “ETS”). In writing the decision for the majority, Justice Kavanaugh noted, “[a]dministrative…<\/p>\n","protected":false},"author":1,"featured_media":1320,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"_links_to":"","_links_to_target":""},"categories":[175],"tags":[279,221,280],"class_list":["post-1693","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-covid-19-resources","tag-covid-testing","tag-osha","tag-vaccination"],"acf":[],"yoast_head":"\nWhat does this mean for employers of 100+ employees?<\/h3>\n
CMS Rule Mandate Relating to Health Care Facilities<\/h2>\n