January 7, 2022, is a significant day for all of us in this country who stand against the vaccine and testing mandates.
The U.S. Supreme Court has, on that day, scheduled oral argument on legal challenges to a) the Occupational Safety and Health Administration’s COVID-19 Vaccination and Testing Emergency Temporary Standard (“OSHA ETS”) and b) the Centers for Medicare and Medicaid Services Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule (“CMS Vaccine Mandate”).
OSHA ETS
Regarding the OSHA ETS, on November 6, 2021, a day after OSHA issued the OSHA ETS, the United States Court of Appeals for the Fifth Circuit granted a temporary administrative stay of the ETS based on the requests of private entities, states, and others. Less than a week later, on November 12, 2021, the Fifth Circuit stayed enforcement of the OSHA ETS pending review.
Unfortunately, the stay was lifted by the United States Court of Appeals for the Sixth Circuit on December 17, 2021. Fortunately, many entities leaped into action, and now the OSHA ETS is firmly before the United States Supreme Court, with oral arguments set, on an expedited basis, for January 7, 2022.
OSHA has announced that it would not issue citations for non-compliance with any requirements of the OSHA ETS before January 10, 2022, and will not issue citations for non-compliance with testing requirements before February 9, 2022, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the OSHA ETS. While it is unknown whether the Supreme Court will be able to issue a ruling by OSHA’s January 10, 2022 compliance date, either for or against a stay of the OSHA ETS, the fact that the Supreme Court has expedited oral argument seems to indicate that it is attempting to give employers (and, thus, their employees) some finality concerning their obligations under the OSHA ETS.
CMS VACCINE MANDATE
Regarding the CMS Vaccine Mandate, on November 29, 2021, the United States District Court for the Eastern District of Missouri granted a request for a preliminary injunction enjoining CMS from enforcing the CMS Vaccine Mandate within the States of Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming. The government appealed that determination to the 8th Circuit Court of Appeals; however, that court denied the request to lift the injunction.
On November 30, 2021, the United States District Court for the Western District of Louisiana went a step further than the United States District Court for the Eastern District of Missouri. It enjoined CMS from enforcing the CMS Vaccine Mandate anywhere within the United States which was not already covered by the stay of the CMS Vaccine Mandate established by the United States District Court for the Eastern District of Missouri. On December 15, 2021, however, the Fifth Circuit Court of Appeals limited the scope of the injunction granted by the United States District Court for the Western District of Louisiana to include only the States who had initiated the lawsuit: the States of Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, the Commonwealth of Kentucky, and Ohio. On that same day, December 15, 2021, the United States District Court for the Northern District of Texas also ordered that CMS be prohibited from enforcing its vaccine mandate within the State of Texas.
In other words, although the CMS Vaccine Mandate is still halted in the 14 states that brought the lawsuit in Louisiana, in Texas, and in the 10 states that are part of the Missouri lawsuit, for everywhere else, there is no injunction against the CMS’s enforcement of the CMS Vaccine Mandate. Presently, thus, our country is more or less evenly split between those 25 states in which CMS is enjoined from enforcing the CMS Vaccine Mandate1, and those 25 States2, including the District of Columbia and U.S. territories, where CMS is free to enforce the CMS Vaccine Mandate. CMS applied to the United States Supreme Court for a stay of the injunctions issued by the lower courts in Louisiana, Missouri, and Texas, and the matter is now before the United States Supreme Court, with oral arguments set, on an expedited basis, for January 7, 2022.
On December 28, 2021, CMS issued a Memorandum to its State Survey Directors (the “QSO-22-07”), modifying the original compliance dates for the CMS Vaccine Mandate. QSO-22-07 applies only to those 25 States3, including the District of Columbia and U.S. territories, where CMS is free to enforce the CMS Vaccine Mandate. QSO-22-07 provides its State Survey Directors guidance in determining whether a health care facility is compliant with the CMS Vaccine Mandate, how to help ensure a health care facility becomes complaint if it isn’t, and under what conditions a health care facility which is not compliant will be penalized. QSO-22-07 essentially indicates that:
a) staff at all health care facilities included within the regulation must have received at least one dose of a COVID-19 vaccine (or “have a pending request for, or have been granted a qualifying exemption, or identified as having a temporary delay as recommended by the CDC”) by January 27, 2022;
b) staff at all health care facilities included within the regulation must have received the necessary doses to complete the vaccine series (i.e., one dose of a single-dose vaccine or all doses of a multiple-dose vaccine series (or “have a pending request for, or have been granted a qualifying exemption, or identified as having a temporary delay as recommended by the CDC”) by February 28, 2022;
c) health care facilities that fail to meet the above parameters by the above-referenced dates but still have a high vaccination percentage (that is, a) 80% by January 27, 2022, with a plan to reach 100% by February 28, 2022, or b) 90% by February 28, 2022, with a plan to reach 100% by March 30, 2022), will be provided some leeway designed to help them become compliant but could be subject to additional enforcement actions depending on the severity of the deficiency and the type of facility;
d) healthcare facilities failing to comply with the 100% standard by March 30, 2022, may be subject to enforcement action.
While it is unknown whether the Supreme Court will be able to issue a ruling by the above compliance dates, either for or against a continued injunction against the enforcement of the CMS Vaccine Mandate in the States where the injunction presently applies, and either for or against its applicability to the remaining States, the District of Columbia and U.S. Territories, the fact that the Supreme Court has expedited oral argument seems to indicate that it is attempting to give health care facilities (and, thus, their staff) some finality concerning their obligations under the CMS Vaccine Mandate.
1 Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia and Wyoming.
2 California, Colorado, Connecticut, 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.
3 California, Colorado, Connecticut, 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.
