Supreme Court Stops Vaccination and Testing Mandate For Private Employers
On January 13, 2022, the Supreme Court of the United States (SCOTUS) ruled to halt President Biden’s proposed vaccine mandate for private employers with 100 or more employees. The mandate was developed to establish a mandatory vaccination policy requirement for this sector.
SCOTUS Reasoning
In its published decision, SCOTUS stated that OSHA was not given the power to regulate public health more broadly than occupational dangers. In addition, the Court explained that challenges to the ETS were likely to succeed on the merits because the agency lacks the authority to impose the mandate. Specifically, the OSH Act only allows the agency to set workplace safety standards, not broad public health measures.
Finally, the Court argued that the requirement that employees either become vaccinated or undergo weekly testing is not an exercise of federal power. Instead, SCOTUS stated the mandate represents a “significant encroachment into the lives—and health—of a vast number of employees.”
Employer Take Away
Given this new stay, employers are not required to comply with the President’s vaccination and testing mandate at this time. However, because the case has been sent back to the 6th Circuit (where it originated), The Capital Group will continue to monitor legal developments to learn about a final decision on the mandate.
Supreme Court Reinstates Vaccine Mandate for Health Care Workers
In addition to the ruling for private employers, SCOTUS allowed the vaccine mandate, as issued by the Centers for Medicare and Medicaid Services (CMS), requiring all healthcare facilities that participate in Medicare and Medicaid to have all eligible staff fully vaccinated by January 4, 2022. CMS issued FAQ on this rule on November 5th and updated it on December 28th, 2021. The FAQs for healthcare workers can be found here.
Employer Take Away
In light of SCOTUS’s ruling, it is likely that CMS will resume enforcement of the vaccination emergency rule. As a result, affected health care facilities that have not already implemented a vaccination policy should establish a policy requiring staff to be COVID-19 vaccinated as soon as possible. In addition, affected health care facilities should implement procedures to determine and document workers’ vaccination status.
Federal Contractor’s Vaccine Mandate
Yesterday’s SCOTUS ruling did not affect the vaccine mandate for federal contractors. Currently, this mandate is still on hold. To recap, on December 7, 2021 a Georgia federal judge issued an injunction that blocked the mandate nationwide, effective immediately.
The Order specifically stated that the case in question is not about whether the government can require citizens to obtain vaccines. Rather, the court’s opinion is that the Biden administration likely exceeded its authority to manage the federal procurement of goods and services when it imposed the vaccination requirement on federal contractors and subcontractor employees.
Employer Take Away
The injunction impacts federal contractors and subcontractors nationwide. This mandate is still in the courts waiting for an ultimate decision. The Capital Group will provide updates as they become available.
Agencies Issue Guidance on Coverage of OTC COVID-19 Tests
On January 10, 2022, the Departments of Labor, Health and Human Services (HHS), and the Treasury issued FAQ guidance regarding the requirements for group health plans and health insurance insurers to cover over-the-counter (OTC) COVID-19 diagnostic tests.
Plan Requirements
Plans and insurers must cover the costs of COVID-19 tests during the COVID-19 public health emergency without imposing any cost-sharing requirements, prior authorization, or other medical management requirements.
Under guidance issued in June 2020, at-home COVID-19 tests had to be covered only if they were ordered by a health care provider who determined that the test was medically appropriate for the individual. At that time, the FDA had not yet authorized any at-home COVID-19 diagnostic tests. Since then, several types of OTC at-home tests have been approved.
As of January 15, 2022, the cost of these tests must be covered, even if they are obtained without the involvement of a health care provider. However, the FAQs do not require tests to be covered if they are not for individualized diagnosis (such as tests for employment purposes).
Plan Options
Group health plans and insurers may place some limits on coverage, such as:
Employer Take Away