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Dear USET/USET SPF Family,
Today, the Supreme Court issued opinions on whether two federal vaccine mandates could take effect pending further litigation. In the first opinion, in National Federation of Businesses v. Department of Labor, the Supreme Court halted the enforcement of the Occupational Safety and Health Administration's (OSHA) Emergency Temporary Standard (ETS) requiring most employers with 100 or more employees to ensure their workers are fully vaccinated or tested for COVID-19 on a weekly basis. This means OSHA will be unable to enforce the mandate as litigation continues in the lower courts.
As we previously alerted, OSHA had initiated Tribal consultation on the ETS via Dear Tribal Leader letter, with a virtual consultation scheduled for January 19, 2022. Presently, it remains unclear if the SCOTUS decision will impact the consultation or OSHA's public comment deadline, which is also January 19th. We will provide further information on those as it becomes available.
Also today, the Supreme Court issued an opinion in Biden v. Missouri, allowing the Centers for Medicare and Medicaid Services' (CMS) Interim Final Rule (IFR) to take effect in the 25 states party to ongoing litigation against the rule. The IFR requires that covered facilities develop a policy ensuring all eligible staff have received the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine prior to providing any care, treatment, or other services by a revised deadline of January 27, 2022. All eligible staff must have received the necessary shots to be fully vaccinated – either two doses of Pfizer or Moderna or one dose of Johnson & Johnson – by February 28, 2022.
On January 4, 2022, USET SPF submitted comments to CMS on the IFR. Broadly, our comments oppose the imposition of this mandate on Tribal Nations, as this should be our sovereign choice. We further note that CMS has failed to properly consult with Tribal Nations on the IFR and has not provided clarity on its application in Indian Country. Finally, we express concern that the implementation of the IFR at some member Tribal Nation health facilities could lead to critical staffing shortages as we continue to battle the pandemic.
Based on lower court decisions, CMS announced in late December that it would begin enforcing its vaccine mandate Interim Final Rule (IFR) at facilities in the 25 states where the mandate had not been paused pending further legal action. Today's Supreme Court decision means that the IFR will now be enforced nationwide as litigation continues.
CMS has provided additional implementation guidance here. The new guidance provides that, “Facility staff vaccination rates under 100% constitute noncompliance under the rule. Non-compliance does not necessarily lead to termination, and facilities will generally be given opportunities to return to compliance.” The guidance goes on to describe a phased compliance, as well as thresholds for “additional enforcement.”
USET SPF will continue to monitor both the OSHA ETS and the CMS IFR, including the ongoing litigation, and will provide updates as they become available. Click here for additional information and FAQs on the two mandates. We strongly encourage you to contact your legal counsel with questions on their application to your Tribal Nation.
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