Medicare Compliance & Reimbursement

With the holidays over and the Omicron variant rising, the fight over COVID-19 vaccination mandates heads to the Supreme Court. Read on for the details.

Reminder: After the Occupational Health and Safety Administration (OSHA) and the Centers for Medicare & Medicaid Services (CMS) issued vaccine mandate regulations on Nov. 5, 2021, legal challenges ensued. The OSHA Emergency Temporary Standard (ETS) rule, which applies to employers with more than 100 employees, was blocked nationwide. Then CMS was enjoined from enforcing its rule, but then the Fifth Circuit Court of Appeals lifted the injunction for 25 states and the District of Columbia (see story, p. 3).

Now the OSHA ETS rule is also on again. “OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard,” the federal agency says in a statement on its website. A Sixth Circuit three-judge panel lifted the Fifth Circuit’s stay of the ETS in a 2-1 order on Dec. 17.

However, deadlines for the requirement have changed. “To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS,” it says. “To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”

Plus: “OSHA will work closely with the regulated community to provide compliance assistance,” the agency adds.

In other words, “OSHA won’t start fining employers until Jan. 10 and testing need not be in place until Feb. 9,” expects attorney Robert Markette Jr. with Hall Render in Indianapolis. Forthcoming OSHA guidance will be more specific about what is required on which date, however, Markette says.

“But the litigation drama continues,” note attorneys Brent Clark, James Curtis, A. Scott Hecker, Patrick Joyce, and Adam Young with Seyfarth Shaw in online analysis. “Shortly after the Sixth Circuit overturned the ETS stay, petitioners filed numerous emergency stay applications with the United States Supreme Court,” they note.

On Wed. Dec. 22, “the U.S. Supreme Court fast-tracked challenges to two federal vaccine mandates, and said it would hear oral arguments on the OSHA vax-or-test mandate for large employers and the CMS vaccine mandate for healthcare workers on Friday January 7,” notes attorney Paige Hoster Good with McAfee & Taft in Oklahoma City. “Until January 7, all lower court rulings remain in effect,” Hoster Good points out in online legal analysis.

Hearing the oral arguments at a special session is “an unusual and extraordinary action,” the Seyfarth attorneys observe. “The proceeding will place the Supreme Court in the middle of a simmering debate on the validity of vaccine mandates covering private employers, and the Court’s decision may foretell the final outcome and survival of two of the major private employer vaccine mandates,” they say.

“While it is unknown whether the Supreme Court will be able to issue a ruling by OSHA’s January 10, 2022 compliance date, the Supreme Court’s expedited schedule seems to indicate that it is attempting to give employers some finality concerning their obligations under the federal mandates,” offers attorney Lilian Doan Davis with law firm Polsinelli.

A ruling on the stays isn’t the final word, either. But “SCOTUS’s decision on the status of these stays should be telling for how the justices would ultimately decide these cases on the merits,” Hoster Good suggests.