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No Decision Yet from the U.S. Supreme Court Following Oral Arguments on Vaccine Mandates


On Friday, January 7, 2022, the Supreme Court of the United States (“SCOTUS”) heard oral arguments regarding the Occupational Health and Safety Administration Emergency Temporary Standard (the “ETS”) and Centers for Medicare and Medicaid Services rule (the “CMS rule”) on workplace vaccinations. By close of business Friday, many legal scholars were expecting a decision, or possibly an administrative stay, to come down over the weekend. For now, there is no administrative stay or final decision from SCOTUS on the fate of the ETS or CMS rule.

For employers of 100 or more employees who are subject to the ETS, here’s what you need to know:

  • January 10 is the deadline to adopt either a mandatory vaccination policy or an elective vaccination policy, in compliance with the ETS.
  • January 10 is the deadline to have compiled employee responses as to individual vaccination status.
  • January 10 is the required effective date for a mandatory face covering policy for covered, unvaccinated employees.
  • February 9 is the deadline to begin administering COVID-19 tests to covered, unvaccinated employees, in compliance with the ETS.

As earlier reported, CMS incorporated its vaccination rule into participating health care entities’ terms and conditions of federal funding. For health care employers, the CMS rule requiring vaccination of employees remains on track in the 25 states which are not subject to earlier court injunctions. Specifically, CMS says, in those 25 states, the District of Columbia, and the territories, as an exercise of enforcement discretion, the rule will be implemented and enforced on the following modified timeline:

  • The deadline for Phase 1 implementation is January 27, 2022.
  • The deadline for Phase 2 implementation is February 28, 2022.

The Koley Jessen Employment and Health Care teams are actively monitoring this situation, and will continue to publish guidance as more information becomes available. Employers with questions or requests for form policies, procedures, or communications to employees should contact a member of the Koley Jessen team today to ensure their business is equipped with the right tools and knowledge to navigate these ever-changing requirements.


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