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Final Word in Legal Challenges to CMS and OSHA Vaccine Mandate Rule

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Founding Member of Moshes Law, P.C.
During his years of practice, Yuriy has concentrated in litigation and real estate transactions as his areas of expertise.

The legal battle over vaccine COVID-19 vaccine mandates in the workplace continues. Guidelines continue to evolve and be further defined with each new legal challenge. On November 4, 2021, the Centers for Medicare and Medicaid Services (CMS) made mandatory, COVID-19 vaccinations for healthcare workers across the country. Since then, its constitutionality has undergone numerous legal challenges. The United States Supreme Court recently upheld the Covid-19 vaccine mandate for healthcare workers at Medicaid/Medicare-funded facilities. 

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    Similarly, the Occupational Health and Safety Administration (OSHA) imposed a “get tested or get vaccinated” policy for businesses with greater than 100 employees. However, OSHA’s Vaccination and Testing Emergency Temporary Standard did not fare as well in front of the Supreme Court as the CMS mandate. 

    So what do each of these decisions mean specifically, and what do they mean for the future? We take a look below.

    CMS Vaccine Mandate Is Accepted

    On November 4. 2021, the CMS instituted its COVID-19 vaccine policy for healthcare personnel working at facilities that receive federal dollars for Medicare and Medicaid patients. It provided for religious and medical exemptions for those who had objections to getting the vaccine.

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    The Supreme Court took up the case and issued a 5-4 decision on September 9, 2021 in Biden v. Missouri that allowed a CMS vaccine mandate to go forward. The opinion stated there was enough legal precedent and public safety factors to justify its constitutionality. The Court said healthcare workers already received vaccinations for other conditions (the most common being flu, MMR and Hepatitis B) as a requirement for employment. The ruling stated the Covid-19 vaccine was necessary because “COVID-19 is a highly contagious, dangerous — and especially for Medicare and Medicaid patients — deadly disease.” As a result, all covered healthcare workers were required to be vaccinated or provide religious/medical exemptions by February 22, 2022.

    OSHA Vaccine-or-Test Mandate Got Blocked

    A similar mandate by OSHA, the Vaccine and Testing Emergency Temporary Standard (ETS), was meant to be applied to companies with more than 100 employees. OSHA saw it in the same light as the CMS; protecting the health of workers against the threat of COVID-19. The ETS required employees who worked in businesses with greater than 100 employees to get vaccinated or provide regular negative test results for COVID-19. The legal challenges to it began almost immediately. The case made its way up to the Supreme Court, and on January 13, 2022, the Court ruled on a 6-3 majority that the mandate was seen as overreach and thereby, it was stayed. The Court ruled that OSHA’s authority was limited to workplace safety and not the broader public health safety the ETS entailed for all employers with greater than 100 employees. The case was remanded back to a lower appeal court for further litigation and consideration. OSHA also has the option to issue a similar mandate that would be more limited in scope, if OSHA chose to do so.

    How Does It Affect Employers 

    As previously mentioned, as of February 22, 2022, healthcare workers who work in facilities that service Medicare and Medicaid patients must be vaccinated against COVID-19 or provide a religious or medical exemption to the vaccine, which must also be approved. This includes, but is not limited to, facilities like hospitals, home health agencies, dialysis clinics, and ambulatory surgical facilities. Some states may have laws that contradict the federal mandate. Normally though, when there’s a conflict between state and federal laws, federal law takes precedence. It is recommended that employers seek legal advice where conflicts may exist with the federal CMS mandate.

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      OSHA’s current ETS is currently on ice pending litigation in lower appeals courts. OSHA may institute a similar regulation more limited in scope. However, in the meantime, employers should expect to follow OSHA’s General Duty Clause under the Occupational Safety and Health (OSH) Act of 1970. The GDC requires employers to maintain a workplace free of known workplace hazards. This essentially leaves it up to individual employers to establish COVID-19 standards within the scope of the law. As with the CMS mandate, it’s recommended employers seek legal counsel to make sure any guidelines and rules they establish don’t exceed what’s allowed and recommended by law.


      The COVID-19 pandemic is far from over and likely never will be. The same could be said for creating and deciding policies governing COVID-19, employees, and employers. Laws, mandates, regulations will continue to be shaped by ongoing legislation and court litigation.

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      Stay with this blog for any updates in the ongoing evolution regarding COVID-19 and how it affects you in the workplace.

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