Employer Vaccine Mandate Update: US Supreme Court Set to Review on January 7, 2022

Employers have been placed in the court’s spin cycle as it relates to the OSHA and CMS vaccine mandates. While the mandates were issued on November 5, 2021, the Fifth Circuit stopped the OSHA mandate, only to have a panel of Sixth Circuit judges reverse the stop by the Fifth Circuit. The CMS mandate is even more convoluted as 25 state courts have stopped the CMS mandate, while 25 state courts have not.  

Now in the days and minutes leading up to the necessary implementation of the mandate, the US Supreme Court has agreed to hear oral arguments on the issue on January 7, 2022. So, the question for employers now is: what should private employers covered by the OSHA or CMS mandate do? Let’s go through a few important facts before making that determination: 

When does the OSHA mandate take effect? 

The OSHA Mandate is set to take effect on January 10, 2022. 

When does enforcement and penalties start for non-compliance to the OSHA mandate?

Unless the mandate is stayed by the US Supreme Court, the Department of Labor has officially stated that they will not issue citations for non-compliance until after February 9, 2022, so long as employers are exercising reasonable good faith efforts to come into compliance with the mandate. You can see updates on the status of any litigation and enforcement timelines here

Which employers have to comply with the OSHA mandate? 

If you are a private employer with more than 100 employees, regardless of if they are all in multiple facilities or work from home, you must comply with limited exceptions. For more information, you can read the OSHA publication here on who is a covered employer and the steps needed to comply. 

When does the CMS mandate take effect? 

Until the US Supreme Court issues a ruling, the answer to this is split depending on which state you operate out of. Since some states still have effectively stopped the CMS mandate (including Arizona), there is not a current enforcement time frame until a ruling by the Supreme Court determines the proper action for states whose courts have stayed the mandate. For states who have not stayed the mandate, CMS has issued guidance regarding Phase 1 implementation needing to take place by January 27, 2022, and Phase 2 implementation needing to take place by February 28, 2022. You can get more information by viewing the CMS updates provided here

Which states have effectively stopped the CMS mandate right now? 

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.

Which employers have to comply with the CMS mandate? 

In states that do not have a stop in place by the court, the list of covered employers as stated by CMS is as follows: 

‘The staff vaccination requirement applies to the following Medicare and Medicaid-certified provider and supplier types: Ambulatory Surgery Centers, Community Mental Health Centers, Comprehensive Outpatient Rehabilitation Facilities, Critical Access Hospitals, End-Stage Renal Disease Facilities, Home Health Agencies, Home Infusion Therapy Suppliers, Hospices, Hospitals, Intermediate Care Facilities for Individuals with Intellectual Disabilities, Clinics, Rehabilitation Agencies, and Public Health Agencies as Providers of Outpatient Physical Therapy and Speech-Language Pathology Services, Psychiatric Residential Treatment Facilities (PRTFs) Programs for All-Inclusive Care for the Elderly Organizations (PACE), Rural Health Clinics/Medicare Federally Qualified Health Centers, and Long Term Care facilities.”

More information can be found here on the CMS External FAQ. 

Where can I get help with policies or implementation of the mandate?

There are some helpful tools on the OSHA and CMS websites, but they are generic. The Counxel Legal Firm team has helped several clients draft and implement policies that fit their workforce. These policies are not one size fits all. Even if the US Supreme Court decides that the mandates cannot go into effect, we have helped multiple businesses with creating a policy relating to proper handling and reporting of COVID positive results and other related items. 

Contact Counxel Legal Firm

We are here to simplify your legal experience. If you have questions about these vaccine mandates or other general business items, then contact us at (480) 744-6621 or at request@counxel.com. Don’t forget to check out the good things that others are saying about the services they received from Timothy Coons on Google.

This article is intended for informational purposes only and does not constitute legal advice for your specific situation. Use of and access to this article does not create an attorney-client relationship between you and Counxel Legal Firm. Please contact request@counxel.com or (480) 744-6621 to request specific information for your situation.

*Conveniently located off the 101 Freeway and the US 60 in the middle of Phoenix, Scottsdale, Tempe, Chandler, Gilbert, Mesa, and Queen Creek!

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