23 December 2021

BREAKING: Supreme Court Sets Oral Arguments on Two Federal Vaccine Mandates for Early January

The U.S. Supreme Court scheduled oral arguments for Friday, January 7 to hear challenges to lower court decisions on whether the OSHA 100+ Employee Vaccination and Testing Emergency Temporary Standard (ETS) and the CMS vaccine mandate should be stayed pending full review of the merits.  A ruling from the Supreme Court is likely soon after oral arguments.

The OSHA ETS requires workers at companies with 100 or more employees to be vaccinated against Covid-19, or mask in the workplace and undergo weekly testing.  Under OSHA’s current compliance deadlines, the agency will not issue citations before January 10 to employers making reasonable, good faith efforts to comply, and will not issue citations regarding the ETS’s mandatory testing requirements before February 9.  The ETS was reinstated nationwide by a divided three-judge panel of the Sixth Circuit Court of Appeals on December 17.  (Miller Johnson’s webinar on this decision may be accessed here.)

The CMS vaccine mandate applies to in-person employees of Medicare- and Medicaid-certified healthcare providers and suppliers that are regulated under certain Medicare health and safety standards.  Due to injunctions issued by several federal courts, the CMS vaccine mandate is currently in effect in only half the country, including Michigan.[1]  Under the CMS mandate, the deadline for covered employees to receive their final (or only) vaccine dose is January 4.  (Miller Johnson’s previous webinar on the CMS rule may be accessed here.)

BREAKING: OSHA Healthcare ETS Expires

Yesterday marked the expiration of OSHA’s Healthcare ETS, which had originally gone into effect June 21, 2021.  Significantly for our healthcare clients, the expiration of the Healthcare ETS means that healthcare providers whom it covered are no longer automatically exempt from OSHA’s 100+ employee vaccine-or-test ETS.

We will be sure to keep you updated of any relevant developments. If you have any questions, please contact your Miller Johnson attorney or one of the authors.  We remain available through the holidays.

[1] The CMS mandate is currently in effect in the following states: California, Colorado, Connecticut, DC, 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.  Facilities in all other states are currently not obligated to comply.