December 23, 2021

Supreme Court to Take Shot at Healthcare and OSHA Vaccine Mandates

Executive Branch Authority Put to the Test
Holland & Knight Alert
Timothy James Taylor | Amit Agarwal | Gina A. Fonte | Howard Sokol | Frederick D. Braid | Meghan McCaig

Highlights

  • The litigation over federal vaccine mandates has encountered its latest dramatic twist. The U.S. Supreme Court will hear oral argument on Jan. 7, 2022, on whether to stay lower-court decisions on the Occupational Health and Safety Administration’s Emergency Temporary Standard (OSHA ETS) employer vaccine mandate and the Centers for Medicare & Medicaid Services’ (CMS) healthcare-facility vaccine mandate.
  • This is the first time in known memory that the Supreme Court has heard argument for an emergency stay application on its "shadow docket." The argument will provide critical insight into the justices' views on the mandates and may — or may not — result in a temporary freeze on the government's power to enforce either or both mandates.
  • In the meantime, employers covered by the mandates should continue to prepare for compliance.

The litigation over federal vaccine mandates has encountered its latest dramatic twist. The U.S. Supreme Court will hear oral argument on Jan. 7, 2022, on whether to stay lower-court decisions on the Occupational Health and Safety Administration Emergency Temporary Standard (OSHA ETS) and the Centers for Medicare & Medicaid Services (CMS) healthcare vaccine mandate. (Other federal vaccine mandates, such as those for government contractors, are not being heard.) This is the first time in known memory that the Supreme Court has requested oral argument for an emergency stay application on its "shadow docket." The argument will provide critical insight into the justices' views on the mandates and may  — or may not — result in a temporary freeze on the government's power to enforce either or both mandates. In the meantime, employers covered by the mandates should continue to prepare for compliance.

Background: OSHA's Vaccine-or-Test Mandate for Large Employers

OSHA published an ETS on Nov. 5, 2021, that applies to employers in all workplaces that are under OSHA's authority and jurisdiction that have more than 100 employees companywide. The ETS requires, with certain exceptions, that covered employees either 1) be fully vaccinated against COVID-19, or 2) wear face coverings and submit weekly COVID-19 test results to the employer. (For additional information about the ETS, see Holland & Knight's previous alert, "OSHA Issues Anticipated Emergency Temporary Standard Regarding COVID-19 Vaccination and Testing," Nov. 5, 2021.)

Various constituencies, including employers, employees, religious organizations and trade groups quickly challenged the ETS in numerous circuit courts across the country. Just one day after the ETS became effective, the U.S. Court of Appeals for the Fifth Circuit stayed the ETS' enforcement. After the Fifth Circuit stayed the ETS, the judicial panel on multidistrict litigation randomly selected the Sixth Circuit to hear all challenges to the ETS. The applicable statute governing challenges to enforcement of agency orders permits the court randomly selected to hear challenges to enforcement of a final agency action — in this case, the Sixth Circuit — to revoke a stay issued by a prior appellate court.

On Dec. 17, 2021, the Sixth Circuit lifted the Fifth Circuit's stay of the ETS, meaning it is again in effect and enforceable. Dozens of diverse petitioners immediately filed applications before the Supreme Court to enjoin the Sixth Circuit's decision. The petitioners argue that an injunction would aid the Supreme Court's jurisdiction because it was the court that likely would fully and finally resolve the issue. They contend that they face "critical and exigent circumstances" if the Fifth Circuit's stay were lifted and assert that they are likely to succeed on the merits and would suffer irreparable injury absent relief.

Shortly thereafter, OSHA issued a statement clarifying large employers' compliance deadlines. The statement provides that OSHA will not issue citations for noncompliance with any of the ETS' requirements before Jan. 10, 2022, and will not issue citations for noncompliance with the testing requirements before Feb. 9, 2022, provided that employers exercise reasonable, good faith efforts to comply with the standard.

Background: CMS' Vaccine Mandate for Healthcare Employers

On Nov. 5, 2021, the CMS issued an interim final rule mandating that staff working at Medicare- and Medicaid-certified providers and suppliers be vaccinated against COVID-19.

Several states have sued in various federal courts, with mixed results thus far. A Florida district court declined to enjoin the healthcare vaccine mandate, and so did the Eleventh Circuit on appeal. In contrast, a Missouri district court enjoined the mandate for the 10 plaintiff states,1 and the Eighth Circuit declined to lift that injunction. Soon thereafter, a Louisiana district court enjoined the mandate nationwide; the Fifth Circuit declined to lift the injunction, but narrowed it to the 14 plaintiff states.2 Finally, a Texas district court has enjoined the mandate in Texas.

On Dec. 16, 2021, the government requested that the Supreme Court stay the injunctions issued by the Missouri and Louisiana district courts — that is, to stay the stays, which would let CMS's healthcare-worker vaccine mandate to go into effect in the plaintiff states pending further litigation.

The Supreme Court's Unprecedented Response for Oral Argument

On Dec. 22, 2021, the Supreme Court responded to both sets of stay requests by requesting oral argument on Jan. 7, 2022, as to whether to issue stays. Typically, stays are granted or denied in short statements by the court or the circuit justice assigned. Hearing oral argument on a stay has not occurred for at least decades.

The Supreme Court's request for oral argument suggests that it views these cases as of paramount importance to the country and to its own legitimacy and transparency. Oral argument on the stay may also be the court's way of acknowledging that a merits decision may come too late to be of practical use. Even if it were to eventually rule some combination of the mandates unenforceable, that would be little solace to employers who had already complied. And likewise, if the mandates were upheld, that would be small comfort to the government's interests of protecting people from COVID-19 in the meantime. The oral argument will also give valuable insight into how the court would rule on the merits — though, as just noted, the realities of the situation may make an eventual merits decision less important than this decision on a stay.

Takeaways

For employers subject to OSHA's large-employer ETS, they should continue to prepare to comply with the ETS. The first enforcement deadline is Jan. 10, 2022. The Supreme Court will hear oral argument three days before that, but it is quite possible that the court will either 1) not rule before Jan. 10, or 2) uphold the Sixth Circuit's decision declining to stay the mandate.

Thus, given the short deadlines, large employers that have not already begun preparing to comply with the ETS should begin determining employees' vaccination status, keeping confidential records documenting employees' vaccination status, and outlining testing procedures and masking requirements for unvaccinated employees. Unprepared employers faced with upcoming deadlines may have to implement the weekly testing alternative, at least to provide for more time for their workforces to be vaccinated.

Although the CMS requirement remains effective in 25 states, CMS announced that it would suspend implementation and enforcement of the requirement pending the ongoing litigation. If the Supreme Court lifts the stays issued in the Fifth and Eighth circuits, CMS is likely to begin taking steps to implement and enforce the requirement.

Finally, the litigation regarding OSHA's large-employer vaccination ETS and the CMS vaccination requirement do not impact the status of OSHA's vaccination requirements for federal contractors, which is currently stayed nationwide, as affirmed by the Eleventh Circuit on Dec. 17, 2021. It also does not affect the status of the U.S. Department of Health and Human Services' (HHS) requirements for vaccination and universal mask-wearing in the Head Start, Early Head Start, Early Head Start-Child Care Partnership, and American Indian and Alaska Native, and Migrant and Seasonal Head Start programs, under which staff, contractors working with children and volunteers must be fully vaccinated by Jan. 31, 2022.

For more information and questions regarding the various rulings and latest developments, please contact the authors.

Notes 

1  Alaska, Arkansas, Kansas, Iowa, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming.

2 Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Oklahoma, Ohio, South Carolina, Utah and West Virginia.


Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.


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