A number of federal vaccine requirements have been imposed, all of which have faced various legal challenges. Highlighted below are two federal vaccine requirements and their current legal statuses.
On January 7, 2022, the U.S. Supreme Court heard oral arguments on two federal vaccine requirements: OSHA’s emergency temporary standard (ETS) and the Centers for Medicare & Medicaid Services (CMS) emergency rule requiring COVID-19 vaccination of certain health care workers.
The ETS established a vaccination-or-testing requirement for private employers with 100 or more employees. These employers were to require employees to be fully vaccinated against COVID-19 or be tested on a weekly basis and wear face coverings at work.
On January 13, 2022, the Supreme Court stayed the OSHA ETS, ruling that OSHA was not given the power to regulate public health more broadly than occupational dangers.
Given this ruling, employers are not required to comply with OSHA’s ETS at this time. On January 25, 2022, OSHA withdrew its COVID-19 ETS. However, the agency stated that it will continue to pursue the regulation as a proposed permanent rule.
The CMS rule requires Medicare- and Medicaid-certified providers and suppliers to establish a policy requiring covered staff members to be vaccinated against COVID-19 unless they are eligible for an exemption based on recognized medical conditions or religious beliefs.
On January 13, 2022, the Supreme Court dissolved the temporary injunctions blocking enforcement of the CMS emergency rule. As a result, the emergency rule has been reinstated and is now being enforced. CMS has issued guidance on the rule for various state groups (QSO-22-07-ALL, QSO-22-09-ALL and QSO-22-11-ALL).
On January 10, 2022, the Department of Labor (DOL), Health and Human Services (HHS), and the Treasury issued FAQ guidance regarding the requirements for group health plans and health insurance issuers to cover over-the-counter (OTC) COVID-19 diagnostic tests.
Plans and issuers must cover the costs of COVID-19 tests during the COVID-19 public health emergency without imposing cost-sharing requirements, prior authorization or other medical management requirements.
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).
Plans and insurance issuers may place some limits on coverage, such as:
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