What the Supreme Court's Ruling on the OSHA Temporary Emergency Standard Means for You

Most of us are aware of the recent decision by the U.S. Supreme Court regarding COVID-19 vaccine mandates for employees. Although news, decisions, and interpretations about what this means may be ongoing, we thought we’d provide some insight as of late January. But as with all things in compliance, rules and regulations can change quickly, so keeping up to date on the latest requirements is an essential skill for any compliance professional.

Supreme Court Ruling on the OSHA Emergency Temporary Standard

The Supreme Court decided not to back the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard requiring private employers to implement vaccine mandates for their employees. But, they did uphold CMS’ authority to require COVID-19 vaccination for workers in facilities that participate in Medicare and Medicaid.

According to CMS Administrator Chiquita Brooks-LaSure, “CMS’ vaccine rule will cover 10.4 million healthcare workers at 76,000 medical facilities.” According to the CMS statement, this means that providers are subject to the Omnibus healthcare Staff Vaccination rule in the 24 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) covered by the Supreme Court decision and:

• • Providers will need to establish plans and procedures to ensure their staff is vaccinated against COVID-19.
  • Their employees must receive at least the first dose of a COVID-19 vaccine by Feb. 14, 2022.

Employees must be fully vaccinated by March 15, 2022. (The Omnibus Health Care Staff Vaccination rule can be found here. The Supreme Court decision did not affect compliance timelines for providers in the District of Columbia, the territories, and the 25 states where the preliminary injunction was previously lifted. That means for staff with certified providers in California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington, and Wisconsin; providers will need to be:

• • Vaccinated with the first dose of a COVID-19 vaccine by Jan. 27, 2022.
  • Must be up to date on COVID-19 immunization by Feb. 28, 2022. (For additional information regarding these states, see the guidance released on December 28, 2021, here.)

On January 14, 2022, CMS issued interpretive guidance titled, “Guidance for the Interim Final Rule - Medicare and Medicaid Programs; Omnibus.” It can be found here.

Enforcement for Noncompliance

Some in the compliance community wonder what kind of enforcement could result if facilities are non-compliant with these requirements. In the January 14 interpretive guidance, CMS states,

“Medicare and Medicaid-certified facilities are expected to comply with all regulatory requirements, and CMS has a variety of established enforcement remedies. For nursing homes, home health agencies, and hospice (beginning in 2022), this includes civil monetary penalties, denial of payments, and—as a final measure—termination of participation from the Medicare and Medicaid programs. The sole enforcement remedy for non-compliance for hospitals and certain other acute and continuing care providers is termination; however, CMS’s primary goal is to bring health care facilities into compliance. Termination would generally occur only after providing a facility with an opportunity to make corrections and come into compliance.”

Vaccine Exceptions

Many people want to know if there are any notable exceptions to the vaccine mandate for workers subject to the CMS rule. In general, there may be medical or disability reasons for a person to refuse the vaccine and some individuals with sincerely held religious beliefs. CMS is aware of its obligation to comply with applicable federal nondiscrimination and civil rights laws, and protections and employers should be familiar with those employee rights and laws as well. More information on federal nondiscrimination and civil rights laws is available here.

Compliance with the CMS Rule

Needless to say, time is of the essence. We’ve got a lot to do in a short amount of time and we’re tasked with overseeing the compliance with the CMS rule to vaccinate workers while maintaining compliance with nondiscrimination and civil rights laws. Luckily, as compliance professionals, we can do hard things, and do them well. And it also goes without saying, but I’ll say it anyway: rules and interpretive guidance are subject to change, so stay up to date with the most current information to make sure you’re on the right path.

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