COVID-19 Vaccine Mandates: Surviving the Financial Jabs to Medical Offices and Businesses

By: Christopher Imad Mdeway, Class of 2022

On January 7, 2022, the Supreme Court of the United States heard oral argument about vaccination in the workplace.[1] During this hearing, the Court reviewed two pressing aspects of the Biden administration’s federal mandates:

• The vaccine-or-testing mandate for companies with over 100 employees that was issued by the Occupational Safety and Health Administration (“OSHA”)—also known as the Emergency Temporary Standard (“ETS”); and

• The vaccination requirement for specific healthcare workers issued by the Centers for Medicare and Medicaid Services (“CMS”).[2]

Given the avalanche of legal challenges that have been raised across the country, the Court’s decision to fast-track this proceeding could gridlock the country’s labor force and economy overnight.

Because the Occupational Safety and Health Act “empowers OSHA to set workplace safety standards, not broad public health measures,” the Court found that OSHA did not retain authority to enact the ETS.[3] Pursuant to this finding, the Court clarified that the ETS is not an “everyday exercise of federal power [and a] significant encroachment into the lives – and health – of a vast number of employees.”[4] Under this view, the ETS could have survived judicial scrutiny if it was most specific to workplace danger where “the virus poses a special danger because of the particular features of an employee’s job or workplace”.[5] Accordingly, this case has been remanded to the Sixth Circuit Court of Appeals, and OSHA withdrew the ETS on January 25th despite continued efforts to promulgate the ETS as a “permanent COVID-19 Healthcare Standard.”[6] Nonetheless, OSHA has stated that it “strongly encourages vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.”[7] ­

Pending further review and contrary to OSHA’s mission, the Supreme Court has upheld the vaccination requirement for nearly 10 million healthcare workers who work in facilities that receive Medicare and Medicaid reimbursements.[8] In the 24 states where the CMS mandate still has effect, employees must receive their first vaccine dose by February 13, 2022, whereas employees in the other 25 states (except Texas) “that did not challenge the CMS vaccine mandate must obtain their first COVID-19 vaccine dose by January 27, 2022, according to CMS’s originally scheduled phases.”[9] As an exceptions, “individuals who provide services 100 percent remotely and who do not have any direct contact with patients and other staff,” such as telehealth services, are not subject to the vaccination requirements outlined in this regulation.[10] For businesses looking to contest the CMS mandate under state law, CMS argues that “under the Supremacy Clause of the U.S. Constitution, this regulation pre-empts any state law to the contrary.”[11] If affected businesses wish to continue receiving federal financial support, then these entities should enforce internal vaccination policies and take this matter seriously. Failure to do so will impact entire business models, likely putting them deeply in the red. At this juncture, Americans face a harsh reality: compliance with the mandate will require downscaling various workforces, possibly dramatically, in order to continue future operations.

[1] Biden v. Missouri, 142 S. Ct. 647 (2022). [2] Christopher C. Puri & Derek A. Terry, Supreme Court Ruling Permits CMS Vaccine Mandate for Employees of Healthcare Facilities to Become Effective,The National Law Review (Feb. 1, 2022), https://www.natlawreview.com/article/supreme-court-ruling-permits-cms-vaccine-mandate-employees-healthcare facilities-to; see also Melissa A. Bailey, Supreme Court Stays OSHA's COVID-19 Vaccination And Testing Emergency Temporary Standard , Ogletree Deakins (Jan. 17, 2022), https://ogletree.com/insights/supreme-court-stays-oshas-covid-19-vaccination-and-testing-emergency- temporary-standard [3] See Biden v. Missouri, 142 S. Ct. 647. [4] Id. [5] Id. [6] United States Department of Labor, COVID-19 Vaccination and Testing ETS, OSHA (Jan. 25, 2022), https://www.osha.gov/coronavirus/ets2 (last visited Feb 4, 2022). [7] Id. [8] See Puri & Terry, Supreme Court Ruling Permits CMS Vaccine Mandate for Employees of Healthcare Facilities to Become Effective, The National Law Review (Feb. 1, 2022) [9] Id. [10] Centers for Medicare & Medicaid Services, External FAQ: CMS Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule(Jan. 20, 2022), https://www.cms.gov/files/document/cms-omnibus-covid-19-health care-staff-vaccination-requirements-2021.pdf [11] U.S. Const. art. VI § 2