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Still Waiting for Supreme Court to Rule on CMS and OSHA ETS Vaccine Mandates

The U.S. Supreme Court heard arguments on Jan. 7th on the challenges to the Centers for Medicare and Medicaid Services (CMS) Interim Final Rule (IFR) and Occupational Safety and Health Administration (OSHA) Vaccination and Testing Emergency Temporary Standard (ETS). The Supreme Court website contains links to the briefs filed in both cases, and the audio recordings of the arguments will be posted on the website soon. Both of these cases were before the Supreme Court on emergency petitions to determine whether injunctions should be issued pending trials on the merits of these challenges to the respective rules. The Supreme Court decisions should provide some much-needed clarity while these cases weave throughout the courts over the next few months.

OSHA ETS Vaccine Mandate: Based on the oral arguments and the questions asked by the justices, the Court seemed skeptical of (1) the breadth of the OSHA Vaccination and Testing ETS; and (2) the authority of the agency to issue such an ETS. The consensus of legal pundits and reporters appears to be that it would not be surprising if the Court ruled to enjoin the enforcement of the OSHA Vaccination and Testing ETS at this point.

CMS IFR: In the CMS case, however, the justices seemed more receptive to arguments that CMS has the authority to issue regulations under the relevant statutes governing the Medicare and Medicaid programs for specific providers. There were many comments that the CMS IFR was more narrowly directed to the entities that it has the power to regulate under various other circumstances and that the CMS IFR was not nearly as broad as the OSHA ETS. Nonetheless, it will be a closer call on whether the Court allows the CMS IFR to proceed fully, limits it to certain provider types based on the specific language of each relevant statute, or enjoins it from proceeding at this point.

Members should keep in mind that regardless of the decision on the CMS IFR, our State mandate will remain in place. LeadingAge NY will keep members updated on these two mandates as soon as the Supreme Court issues its decisions.