Taylor Porter Employment Alert:  Vaccine Mandates


January 14, 2022

By Vicki Crochet, Partner and Tom Peak, Partner

On January 13th, the Supreme Court of the United States (SCOTUS) made two highly anticipated rulings related to COVID-19 vaccine mandates.

In National Federal of Independent Business, et al v. Department of Labor, Occupational Safety and Health Administration, et al, Nos. 21A244 and 21A247, 595 U.S. ___ (2022), the Court considered a request for emergency relief from Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) imposing vaccine mandates on employers of 100 or more employees.  Finding that OSHA may have exceeded its authority, the Court granted the relief.  Concluding that the plaintiffs would likely succeed in challenging the ETS, SCOTUS specifically found that OSHA is empowered to set workplace safety standards and not public health standards.  Noting that the risk of contracting COVID-19 is not limited to the workplace, the Court stated that permitting OSHA to regulate hazards we all encounter - in and out of the workplace - would inappropriately expand its authority.

As a result, the Court stayed the ETS pending a full review by the United States Sixth Circuit Court of Appeals, the court designated to hear all pending challenges to the ETS.

This means that for now employers do not have to comply with the ETS.  SCOTUS has also signaled that the ultimate validity of the ETS is in doubt.

On the same day, the Court reached a different conclusion in Biden, et al v. Missouri, et al, Nos. 21A240 and 21A241, 595___ (2022).  In this case SCOTUS reviewed the mandate enacted by the Department of Health and Human Services (HHS) applicable to certain designated recipients of Medicare and Medicaid funding. Finding that healthcare facilities that wish to receive Medicare/Medicaid benefits have always had to satisfy multiple conditions aimed at ensuring safe healthcare, the Court refused to stop the application of the healthcare mandates.

Unlike the OSHA ETS, the healthcare mandates require vaccination of most healthcare workers in certain types of facilities and do not allow employers to opt to test those who are not vaccinated.  This means that unless a healthcare worker qualifies for a religious or disability related exemption that may result in an accommodation, an unvaccinated worker cannot work in a covered facility.

On December 28, 2021, the Center for Medicare & Medicaid Services (CMS) updated its Frequently Asked Questions (FAQs) to provide further clarification as to what facilities the mandates apply, as well as other pertinent information.

Taylor Porter’s Employment group is closely following these developments and is available to answer your questions at the following contact information:  Vicki Crochet (225.381.0242 or vicki.crochet@taylorporter.com), and Tom Peak (225.381.0231 or tom.peak@taylorporter.com), David Shelby (225.381.0253 or david.shelby@taylorporter.com), and Lauren Hadden (225.381.0234 or lauren.hadden@taylorporter.com).

Disclaimer:  This article is for general information purposes only. Information posted is not intended to be legal advice. You should consult attorneys for any legal questions and/or advice.


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