Supreme Court OKs CMS Vaccine Mandate but Blocks OSHA Rule

By Abigail M. Kagan, Michelle S. Strowhiro, Sandra M. DiVarco, Kristen O'Brien and Lindsay Ditlow on January 18, 2022

Posted In Employee Benefits, Employment, Health and Welfare Plans, Labor

On January 13, 2022, the Supreme Court of the United States released two emergency opinions that change the landscape of the three federal vaccine rules. In summary:

A 5-4 Court majority let the Centers for Medicare & Medicaid Services (CMS) enforce its vaccine mandate nationwide, impacting specified healthcare facilities.

A 6-3 majority blocked the US Occupational Safety and Health Administration (OSHA) from enforcing its vax-or-test Emergency Temporary Standard (ETS) applicable to large employers.

The third federal vaccine rule—the federal contractor vaccine mandate—remains subject to multiple legal challenges and, at this time, the government is blocked from enforcing the mandate nationwide. The Court has not yet weighed in on this mandate.

Abigail M. Kagan
Abigail M. Kagan focuses her practice on employment law, with particular experience in conducting transactional due diligence, defending single-plaintiff, class and collective actions, second-chairing labor negotiations, and drafting personnel policies and other employment documents. She has advised clients on EEO concerns, the gig economy, data privacy, leaves of absence, reductions in force, wage and hour audits, unemployment insurance, short-term disability, restrictive covenants, and NLRA application to non-union members. Read Abigail Kagan's full bio.

Michelle S. Strowhiro
Michelle S. Strowhiro is an employment advisor and litigator. She provides trusted counsel to US and international companies on all aspects of employment law compliance. Michelle partners with clients to establish and maintain their strong and lawful employment policies and practices; manage their employee relationships from hire to termination; conduct workplace investigations; administer leaves and other workplace accommodations; and resolve disputes. She provides manager and employee trainings on management and sexual harassment. She regularly prepares and negotiates agreements, and advises companies on employment law issues for mergers and acquisitions. Michelle works with clients in the technology, fashion, food and restaurant, health care, sports, media and entertainment industries. Read Michelle Strowhiro's full bio.

Sandra M. DiVarco
Sandra (Sandy) M. DiVarco focuses her practice on the representation of hospitals and health systems. She has counseled health care facility and system clients regarding all aspects of health law transactions and health system restructurings. Read Sandra DiVarco's full bio.

Kristen O'Brien
Kristen O’Brien is an accomplished healthcare executive with a deep understanding of regulatory advocacy and healthcare policy efforts. Kristen offers a strong background and a keen eye for solutions to barriers and challenges impacting healthcare clients. With more than 10 years of experience, her work focuses on implementing new laws through the rulemaking process, as well as working with relevant agency officials to develop and improve agency guidance. Read Kristen O’Brien's full bio.

Lindsay Ditlow
Lindsay Ditlow is experienced in all aspects of employment law, including litigation, counselling, and corporate transactions. As a trial lawyer, Lindsay has successfully represented numerous clients in employment litigations, including cases involving claims under Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Fair Credit Reporting Act, the Family Medical Leave Act and state leave laws, the Inevitable Disclosure Doctrine, state discrimination and retaliation statutes, the Fair Labor Standards Act, and state wage and hour laws. Read Lindsay Ditlow's full bio.

Supreme Court OKs CMS Vaccine Mandate but Blocks OSHA Rule

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