The Supreme Court of the United States ruled yesterday on whether the Occupational Safety and Health Administration’s Emergency Temporary Standard (OSHA ETS) and the Centers for Medicare and Medicaid Services Interim Final Rule (CMS IFR) could move forward as part of President Biden’s American Rescue Plan.
The Court voted 6-3 to block the OSHA ETS that would have required all private business with at least 100 employees to institute a vaccinate or test policy. The Court ruled that OSHA exceeded its authority with the ETS, stating in the unsigned opinion:
Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.
Businesses with 100 or more employees are no longer required to implement written policies to vaccinate or test their employees. Employers should be aware that if they are covered under the Federal Contractor COVID-19 vaccination mandate, they may be required to implement a vaccinate or test policy. Currently the Federal Contractor vaccination mandate is stayed, pending continued litigation.
Alternatively, in a 5-4 split, the Court upheld the CMS IFR mandate because of the narrower application to organizations that receive federal funding under the Social Security Act.
If you are a covered employer under the CMS IFR, to remain compliant with the regulation, you must establish a process or policy to fulfill the staff vaccination requirements over two phases.
The timeline for compliance has been modified as a result of nationwide litigation:
- The deadline for Phase 1 is January 27, 2022
- The deadline for Phase 2 is February 28, 2022
For Phase 1, staff at all health care facilities included within the regulation must have received, at a minimum, the first dose of a primary series or a single dose COVID-19 vaccine prior to staff providing any care, treatment, or other services for the facility and/or its patients.
For Phase 2, staff at all health care provider and supplier types included in the regulation must complete the primary vaccination series (except for those who have been granted exemptions from the COVID-19 vaccine or those staff for whom COVID-19 vaccination must be temporarily delayed, as recommended by CDC).
Addressing time off for COVID-19:
If an employee is exposed to or contracts COVID-19 and needs to quarantine away from work in accordance with CDC guidelines, employers can require they use all available sick leave or paid time off. Alternately, the New Jersey Sick Leave Law applies to virtually every worker in the state and time off for COVID-19 can be counted against their earned leave. If your organization is covered under the FMLA and/or the NJFLA, an employee’s time off of work for COVID-19 can also be counted against those leave entitlements. NJFLA can only be used if the employee needs to care for a qualifying family member with COVID-19, not for their own quarantine.
If you have any questions or concerns regarding COVID-19, or would like assistance in developing any workplace policies, reach out to the LCR COVID-19 Advisory Team at Laddey, Clark & Ryan, LLP at 973-729-1880 or via email: