Yesterday, we received decisions from the US Supreme Court on the status of the OSHA COVID-19 ETS and the CMS vaccine mandate for healthcare workers. As I predicted, the OSHA ETS has been stayed, and the CMS mandate has been allowed to go forward.
Why were the two vaccine mandates treated differently? Short answer: the Court found that the fact that CMS has authority to regulate the health and safety of patients gave it authority to issue the vaccine mandate, while the Court also found that OSHA’s authority to issue an ETS to address a “grave danger” in the workplace did not extend to COVID-19. This is a gross oversimplification, but you get the idea.
Many employers with more than 100 employees are breathing a sigh of relief that they are no longer required to engage in the logistically difficult task of regular COVID-19 testing of workers. Employers still need to follow OSHA and CDC guidance regarding COVID-19 precautions such as social distancing and masking. And with the highly contagious nature of the Omicron variant, employers need to take steps to minimize the spread of infection in the workplace for reasons of worker health and to minimize worker absenteeism.
As for employers of healthcare workers, you need to review recent CMS Guidance that provides detailed information on how surveyors will review facilities for compliance with the vaccine mandate.
Kathleen J. Jennings is a former principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters.
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