Montana variant: tips for moving ahead with CMS rule

The U.S. Supreme Court recently issued important decisions about the fate of two separate federal COVID-19 vaccine mandates, which raises two important questions for Montana employers: First, why did the Court allow one rule to go forward but not the other? Second, what do the opinions mean in practical terms?

How Supreme Court ruled

Although the Supreme Court technically granted stays (or holds) in both cases, the impact was drastically different for each rule:

• With respect to the Occupational Safety and Health Administration (OSHA) rule obligating employers with at least 100 employees to require them to be fully vaccinated or undergo weekly testing, the Court issued a stay that precludes the standard from taking effect
• For the Centers for Medicare and Medicaid Services (CMS) rule requiring all healthcare workers to get the shots, the Court stayed an injunction issued by lower courts, meaning the regulation will take effect.

Why did only one shot mandate survive?

The fundamental question in each case was whether the COVID-19 vaccine mandate fell within the agency’s statutory authority to promulgate rules:

CMS rule. The Court reasoned Congress has granted the secretary of the U.S. Department of Health and Human Services (HHS) the authority “to promulgate, as a condition of a facility’s participation in programs, such ‘requirements as [he] finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.’” The Court found: