Under a rule published by the U.S. Occupational Safety and Health Administration on Nov. 5, businesses with 100 or more workers must require employees to be vaccinated or, if they are not, to be tested weekly and wear masks while working. There are exceptions for those who work alone or mostly outdoors.
How did we get to this point?
That rule was projected to affect more than 17 million workers in about 76,000 health care facilities as well as home health care providers.
The same day, the Centers for Medicare & Medicaid Services published a rule requiring a wide range of health care providers who receive federal Medicare or Medicaid funding to get the first vaccine dose this month and to be fully vaccinated by Jan. 4.
The court is intervening because the rules spawned multiple court challenges from more than two dozen Republican-led states, some conservative and business groups, and some individual businesses that opposed the vaccination mandates. Those challenges produced rulings among several federal district and circuit courts that contradicted one another.
Why is the Supreme Court stepping in?
A three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati ruled 2-1 this month that the vaccine-or-test requirement for workers at companies with 100 or more employees could take effect. Multiple legal challenges to the OSHA rule originally were filed in various U.S. appeals courts.
The cases subsequently were consolidated with the 6th Circuit in a random drawing using ping-pong balls, a process employed when challenges to certain federal agency actions are filed in multiple courts. The requirement could affect some 84 million U.S. workers.
In the health care employee case, a decision by the New Orleans-based 5th U.S. Circuit Court of Appeals kept a preliminary injunction in place for 14 states, altering an earlier ruling by a federal district judge, who applied the order nationwide. A separate preliminary injunction on appeal before the St. Louis-based 8th U.S. Circuit Court of Appeals applied to 10 additional states. That means the vaccine requirement for Medicare and Medicaid providers is blocked by courts in about half states but not in the other half. Does the Supreme Court hearing put mandates on hold?
No, the court hearing is unlikely to put the mandates on hold, unless the court moves extremely fast and reverses the 6th Circuit ruling while expanding the preliminary injunctions of the 5th and 8th circuits to include all the states. What’s next?
OSHA has said the vaccination mandate will go into effect Jan. 10. The testing requirement deadline is Feb. 9. The agency said in a statement that it would not issue citations before the listed dates “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.” Employers who fail to comply with the emergency, temporary standard may be subject to penalties, up to $13,653 per violation for serious violations. As for the Centers for Medicare & Medicaid Services, its guidance says non-compliance among hospitals and “certain other acute and continuing care providers” can lead to termination from the Medicare and Medicaid programs as a final measure. That, however, would occur only after providing a facility an opportunity to make corrections and come into compliance.
Like this article? Gain access to all of our great content with a month-to-month subscription. Start your subscription here.