Supreme Court Upholds CMS Vaccine Mandate; Votes Down OSHA Business Vaccine Mandates

Last week, the Supreme Court ruled, in a 5-4 decision, that a Centers for Medicare & Medicaid Services (CMS) vaccine mandate for health-care workers may proceed. The CMS rule requires that all health-care personnel that enter a care setting or come into contact with patients, families, or caregivers be vaccinated for COVID-19. The rule requires 100% compliance and Medicare and Medicaid-certified facilities are expected to comply with all regulatory requirements. For nursing homes, home health agencies, and hospice (beginning in 2022), penalties for non-compliance includes civil monetary penalties, denial of payments, and as a final measure termination of participation from the Medicare and Medicaid programs.

In upholding the CMS Vaccine Mandate, the Supreme Court noted that the “vaccine mandate will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients.” It stated that a core mission of Health and Human Services is to ensure that the health-care providers who care for Medicare and Medicaid patients protect their health and safety. As such, the mandate is consistent with the authority provided by Congress to establish detailed conditions for facilities to be eligible to receive federal funding.

The court also voted 6-3 to block a rule from the Occupational Safety and Health Administration (OSHA) that would have required workers at large employers to be vaccinated or get tested regularly.

As a result of the court’s decision, health-care providers subject to the Omnibus Health Care Staff Vaccination rule in the 24 states (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, Utah, West Virginia, and Wyoming) covered by this decision will now need to establish plans and procedures to ensure their staff are vaccinated and to have their employees receive at least the first dose of a COVID-19 vaccine.

The decision does not affect compliance timelines for providers in the District of Columbia, the territories, and the 25 states where the preliminary injunction was previously lifted. See the guidance released on December 28, 2021, for additional information.