The courts have been asked to issue a stay and temporarily block the enforcement of the OSHA mandate as well as reject the government’s request to dissolve a prior court’s injunction that stopped the enforcement of the CMS mandate.
The OSHA mandate would require employers with 100 or more workers to require either COVID-19 vaccination or active testing and workplace masking. The CMS mandate would allow the termination of participation in Medicare and Medicaid programs for healthcare facilities who do not require non-exempt workers to be fully vaccinated.
OSHA could have offered guidance or policies other than a vaccine mandate and lacks the ability to set a nationwide COVID-19 policy by emergency rule, said Scott Keller, an attorney representing the National Federation of Independent Business - the organization challenging the Biden vaccine mandate.
Lawyers representing the government argued that OSHA believes that the unvaccinated are at greater risk of contracting and spreading the coronavirus at work and that Congress has already granted OSHA the authority to enact such a measure under the Occupational Safety and Health Act that founded the agency.
In November, courts blocked the enforcement of the CMS vaccine mandate for healthcare workers. Lawyers representing those challenging the mandate argued that unlike masking and other health measures that are temporary and restricted to work, vaccines are not removable and apply to life outside the healthcare setting.