Client Alert: The Supreme Court Speaks to Mandates
Date: January 13, 2022
- The OSHA Mandate requiring vaccine or testing for all employees working for any employer with more than 100 employees, IS STAYED pending a decision by the Sixth Circuit. As a result, at this time, there is no government requirement that employees of these employers be vaccinated.
- The HHS Mandate for employers receiving Medicare and Medicaid funding, remains in effect. Therefore, business receiving this federal funding must require all employees be vaccinated.
Mandate to Large Employers: In November 2021, the Secretary of Labor, acting through the Occupational Safety and Health Administration, issued a vaccine mandate for employers in the United States employing more than 100 employees (the “OSHA Mandate”). The OHSA mandate dictated that employees be fully vaccinated against COVID-19 or obtain weekly COVID-19 medical tests at their own expense and on their own time, and also wear a mask each workday. In reviewing the OSHA Mandate, the Supreme Court reasoned the litigants challenging the OSHA mandate in the Sixth Circuit are likely to succeed on the merits of their challenge. The Supreme Court found that the Secretary lacked authority to impose the mandate. The Court held the OSHA Mandate should be stayed pending the disposition of the applicants’ petitions for review in the United States Court of Appeals for the Sixth Circuit. National Federation of Independent Business, et al. v. OSHA, 595 U.S. ___ (2022)
Mandate to Healthcare Employers: In November 2021, the Secretary of Health and Human Services mandated that all facilities receiving Medicare and Medicaid funding must ensure that all staff is vaccinated against COVID-19. The only exceptions to the vaccine mandate are for those staff members receiving exemption for medical or religious reasons (the “HHS Mandate”). In reviewing the HHS Mandate, the Court held that the Secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID–19. Biden v. Missouri, et al., 595 U.S. ___ (2022).
The Employment Section of Whiteford Taylor will continue to monitor the National Federation case before the Sixth Circuit.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.