On Jan. 13, 2022, the U.S. Supreme Court issued two decisions, both with respect to the various vaccine mandates issued by the Biden administration.
In the first opinion, the Court held that Centers for Medicare & Medicaid Services (CMS) may implement its vaccine mandate through its Interim Final Rule (IFR).1
However, in its second opinion, the Court held that Occupational Safety and Health Administration (OSHA) is prohibited from enforcing its vaccine-or-test Emergency Temporary Standard (ETS), which would have affected employers with 100 or more employees.2
These decisions reversed the Fifth and Eighth Circuits’ prior decisions that blocked implementation of the IFR, and reversed the Sixth Circuit’s decision lifting prior injunctions instituted by lower courts on the ETS.3
Immediate Implications of the Court’s Rulings
As a result of the CMS ruling, health care facilities that are covered by this IFR must immediately begin implementing vaccine policies for the various workers covered under the IFR.4
CMS released a statement on Jan. 13, 2022, clarifying that compliance deadlines for those 25 states and the District of Columbia where the IFR was already in effect, including Wisconsin, would not change. These deadlines were Jan. 27, 2022, for Phase 1 and Feb. 28, 2022 for Phase 2.
With respect to the 24 other states (Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, and Wyoming), there is a separate set of deadlines, considering the previous injunctions from the Fifth and Eighth Circuits.
On Jan. 13, 2022, CMS specifically
stated in a preass release that, “[a]s a result of today’s decision, health care providers subject to the Omnibus Health Care Staff Vaccination rule in the 24 states … covered by this decision will now need to establish plans and procedures to ensure their staff are vaccinated and to have their employees receive at least the first dose of a COVID-19 vaccine.” The new deadline for these states was Feb. 14, 2022, for Phase 1, and is March 11, 2022, for Phase 2.
Texas facilities, due to a separate suit brought to challenge the IFR, were required to comply by Feb. 21 and March 21, respectively.5 A full listing of the deadlines for each state can be found in the
CMS implementation timeline on cms.gov.
Robin Sheridan, Pittsburgh 1993, is a shareholder in the Milwaukee office of
of Hall, Render, Killian, Heath & Lyman, P.C. She counsels health care clients in numerous aspects of health law.
Jessica Biondo, Wayne State 2021, concentrates her practice on commercial and employment litigation matters. She is with the Detroit, Michigan, office of
of Hall, Render, Killian, Heath & Lyman, P.C.
Background
In what may be considered an unconventional move, the Supreme Court heard oral argument on both the OSHA and CMS cases before the full Court on Jan. 7, 2022.
These holdings, which are limited in scope to only the emergency applications, result in the Court’s emergency orders remaining in full effect until the lower federal courts can hear the cases on the merits. If a lower court’s holding differs from the Supreme Court’s orders, the lower court’s holding will have the effect of displacing the Supreme Court’s order.
In total, there were four separate cases before the Court that were consolidated. Two of these cases involved challenges to OSHA’s now-withdrawn vaccine-or-test ETS, and the remaining two challenges argued against CMS’s IFR.
The challenges to the OSHA ETS were led by a business associate who submitted applications requesting that the Court reinstate the stay that was previously dissolved by the Sixth Circuit.
Regarding CMS’s IFR, the government had requested that the Court dissolve the stays in effect, which prevented CMS from enforcing the vaccine requirements in the above mentioned 24 states.
After many cases were filed against OSHA regarding its ETS, these cases were consolidated to a single case to be heard before the Sixth Circuit, which was chosen as the appropriate circuit in a lottery-style drawing.
Subsequently, OSHA issued a statement indicating that it would not act to enforce the ETS until Jan. 10, 2022. Likewise, OSHA indicated it would refrain from enforcing the vaccine-or-test requirements until Feb. 9, 2022. However, this was conditioned on employers demonstrating a good faith effort to comply with the ETS.
On Jan. 25, 2022, OSHA announced that it would be withdrawing its ETS, and that this withdrawal would be effective starting Jan. 26, 2022.
Regarding the IFR, both the Fifth and Eighth Circuits upheld injunctions, issued by district courts, which had blocked CMS from implementing its vaccine mandate.
In the Fifth Circuit’s case, a district court in Louisiana had issued a nationwide injunction against CMS. The Fifth Circuit, while upholding the injunction, reduced the scope of the injunction to make it apply only to the plaintiff states of that lawsuit.
Likewise, the Eighth Circuit upheld the injunction issued by a district court in Missouri. The Eleventh Circuit also weighed in on the IFR and declined to block CMS from implementing its rule.6
All of these cases will now return to the circuits for disposition.
CMS’s IFR May Be Implemented throughout the U.S.
In its order, the Supreme Court’s majority approved the federal government’s request to stay the injunctions that were previously upheld by both the Fifth and Eighth Circuits.
The Court believes that the power to issue this IFR squarely falls within the power vested to the Secretary of Health and Human Services. The Court stated that the Secretary may issue regulations as he “finds necessary in the interest of the health and safety of individuals” who are beneficiaries of both Medicare and Medicaid.
The Court noted that, while this IFR has the effect of conditioning payment on the compliance of employees of the covered entities, this is far from new. Conditions of payment predicated on such participation of employees is “routinely” imposed and seen in circumstances such as “infection prevention and control guidelines” that have consistently been justified as an appropriate use of the Secretary’s power as quoted above.7
The Court recognized that COVID-19 has continued to spread throughout the country despite previously implemented infection control guidelines. Likewise, evidence suggests that some CMS beneficiaries “forego seeking medically necessary care” because of their “fear of exposure” to COVID-19. Given this fear and the fact that Medicare or Medicaid beneficiaries are often of poor health, disabled, or elderly, also acknowledged by the Court, CMS beneficiaries may be at particular risk of health endangerment due to avoiding care out of fear.8
In summarizing its holding, the Court stated that vaccination as a condition of payment “fits neatly” within the Secretary’s powers to ensure that health care entities and their workers are acting to prevent further spread of COVID-19 – which is in keeping with a “fundamental principle” of health care that is called for in the Hippocratic Oath and stating “first, do no harm.”
Supreme Court Blocks OSHA’s Vaccine-or-Test ETS
While the Supreme Court allowed CMS to implement its IFR, it did not grant the same privilege to OSHA with respect to its ETS. The Court agreed that OSHA has the ability to regulate workplace hazards, however, did not agree that this empowered OSHA to regulate a broad public health concern. The Court held that the ETS may be beyond the scope of authority that Congress has granted the agency. Likewise, the Court noted that it would have expected “Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.”
A concurring opinion, written by Justice Gorsuch and joined by both Justices Thomas and Alito, emphasized the role that the “Major Questions Doctrine” would play with respect to the reigning power of the federal government. The Major Questions Doctrine states that courts should not give an agency
Chevron deference in regards to the agency’s statutory interpretation if there is a question of major political or economic significance at issue. Justice Gorsuch stated that the power to mandate vaccines is a power that falls squarely within a state’s police power, rather than a federal agency’s power.
On the other hand, the dissenting Justices Breyer, Sotomayor, and Kagan expressed worry that the Court’s ruling could hinder efforts to mitigate the spread of COVID-19 during an unprecedented public health crisis.
While the Court’s majority held that both Congress and the states must play active roles in tackling this public health emergency, the dissenting Justices argued that Congress was still vested with the power to authorize OSHA to issue this ETS.
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Endnotes
1Biden v. Louisiana, 595 U.S. __ (2022).
2Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., Occupational Safety & Health Admin., 595 U.S. __ (2022).
3SeeLouisiana v. Becerra, 2021 WL 5609846 (Nov. 30, 2021);
Missouri v. Biden, 2021 WL 5564501 (Nov. 29, 2021);
In re MCP No. 165, 20 F. 4th 264 (2021).
4 86 Fed. Reg. 61561, 61616-27.
5 See Texas v. Becerra, No. 5:21-CV-300-H, 2021 WL 6198109, at *1 (N.D. Tex. Dec. 31, 2021).
6 SeeState of Fla. V. Dep’t of Health & Hum. Servs., 19 F.4th 1271 (11th Cir. 2021).
7 42 CFR §483.80 (long-term care facilities); see, e.g., §§482.42(a) (hospitals), 416.51(b) (ambulatory surgical centers), 485.725 (facilities providing outpatient physical therapy and speech-language pathology services).
