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RUSTAM: You can take the mask off, but you can’t take the vaccine off. Which i’m like — [laughter]
NASIR: Everyone read the Supreme Court hearing ruling today? Pretty big news. Is anyone surprised by the result?
ALL: No.
NASIR: Really? I was surprised about that OSHA thing. Let’s just summarize what it is. I’ll do that. Two rulings came out today – the OSHA vaccine mandate was rejected, but the CMS for healthcare facilities was approved or not objected to. Who wants to start off? What do you guys think? We need to figure out something. You know, we’re going to get questions from our clients. We need to figure out what to tell them to help summarize this.
RUSTAM: I think whenever we talk to the clients before, I think we kind of understood it was coming, right? I think the general consensus was let’s prepare for all of our healthcare clients to comply with the CMS mandate and, if the OSHA regimen survived litigation, then we’ll implement that. I think that strategy was the correct one, especially because, you know, at the time that we put that strategy together, the testing regimen was the one that was in litigation.
NASIR: Right.
RUSTAM: And then, closely thereafter, the CMS followed, but at that point we’d already kind of enacted that plan with most of our clients. I mean, just going back and making sure that they have those plans in place as we had talked about before, and then seeing what we want to do or what we want to take from the OSHA testing regimen, if anything at all. You know, if that affects any of their policies or anything like that, just see if that is something that the clients are interested in.
NASIR: Yeah, pretty much this only affects our healthcare clients which that’s where I think we were most concerned about. Look, if you have to do weekly testing and these kinds of things, it would have been probably pretty difficult to implement, but what do you guys think about the actual ruling? Any opinions? Are there any thoughts about that?
TRANG: I think the OSHA ruling was interesting in that they were saying OSHA’s rule was too overbroad. It overstepped its bounds in terms of trying to regulate workplace safety because COVID was, you know, not just limited to occupational risk. It was everywhere, right? It affected every aspect of life. I thought it was interesting though because they looked at it in a narrower scope in terms of the healthcare rule which is like, “Okay. We look at CMS rule. It’s affecting not only the healthcare workers but we also have to protect the lives of patients,” which is interesting because, you know, workers go to work and they can still get infected at the workplace and take it home.
NASIR: Right. I think, on the OSHA mandate, you know, on the occupational hazard, they were saying you can’t stop having the vaccine once you get home.
ZACHARY: You can’t turn off the vaccine.
NASIR: Right, but both opinions – what was it? Justice Roberts and Kavanaugh were on the majority opinion on each side. I don’t know if you guys noticed that.
ALL: No.
NASIR: And one thing that I think was consistent – sometimes court opinions can be inconsistent, but – they were consistent that they were saying basically OSHA guidelines in our legislative statute does not allow them to do this where it comes to CMS they already have existing statute that is within their scope to do this and there’s precedent. I think they relied heavily on the fact that OSHA has never done anything like this. This would have affected 84 million people, right? I mean, that’s incredible, but I don’t know if the numbers are for healthcare workers, but it could be much smaller, obviously.
RUSTAM: Well, I think, to that point, you know, they say in the CMS mandate ruling that the Secretary routinely opposes conditions of participation that relate to the qualifications and duties of healthcare workers and themselves. You know, I think that’s something that they look at in the OSHA testing mandate or testing regimen ruling and said, “No, they didn’t.”
NASIR: There wasn’t anything like that.
RUSTAM: Yeah, exactly.
NASIR: Even though these were two different opinions, they were obviously released the same day and very much related, but like you said, with CMS, most healthcare workers I know are required to get a vaccine for flu or for other infectious disease as well, so this wasn’t – like you said – out of the ordinary of their normal course I should say. Okay. Well, we need to update our clients. First, we need to give everyone a relief that, if they’re an employer of a hundred or more, that they will need to comply with this. But healthcare workers – technically, if it’s still going forward, then the deadlines for healthcare workers was in the past, so I think there’s delayed enforcement though. Or CMS announced it.
RUSTAM: Yeah, I think they delayed it to early February, but that would need to be checked by us to make sure that that date still stands.
NASIR: Okay. Let’s confirm the dates. Give our specific guidance. Obviously, this affects most of our clients since they’re all in healthcare. Also, the scope. I think one thing that we need to nail down now that it’s more certain is just because you’re a healthcare facility, you know, people work from home that come into the facilities sometimes, I think there was some ambiguity in what’s applicable there that we need to kind of nail down. Anything else?
RUSTAM: After reading the opinion about the weekly testing regimen, I think it really begs the question – what is an occupational hazard?
NASIR: I thought that, actually. What is an occupational hazard? I don’t know.
ZACHARY: I mean, yeah, what is an occupational hazard and does that hazard stay with you when you go home? If it’s a hazard at home, is it still an occupational hazard, you know?
NASIR: Yeah, I didn’t follow that argument because they also made the analogy of fire safety, right?
RUSTAM: I thought the worst part of it was when they talked about air pollution.
TRANG: Yes.
RUSTAM: That was the worst part.
RUSTAM: Yeah, at sites where you have significant air pollution, they make you wear masks.
TRANG: Right.
RUSTAM: What are you saying? If I live near a factory at home, I have the same risk as somebody who’s working there, but I’m not wearing a mask at home, but you’re requiring this person to wear a mask which they address almost immediately in the next section by saying you can take the mask off, but you can’t—
NASIR: You can’t take the vaccine off.
RUSTAM: But that was where it kind of deviated for me from the opinion. At that point, I’m like, “Okay. What does that have to do with it? What is this arbitrary new factor?” I have to be like, “Well, can they take it off? Is this a permanent improvement – or unimprovement or whatever – of the human body?” Now, this is a factor in my analysis.
NASIR: You know, most people who are complaining about this vaccine mandate were complaining about how it’s unconstitutional, that they don’t have the authority. People were complaining that it’s not an approved vaccine and things like that. There wasn’t one constitutional question in this opinion.
TRANG: No, there was not.
NASIR: That wasn’t the issue at all.
TRANG: And they actually do say in the opinion that OSHA can make more narrow regulations too specific – like, if you’re in a crowded workplace or those kinds of things.
NASIR: Which is probably likely going to happen, I think.
TRANG: Right.
RUSTAM: Yeah, we were talking about it before. You know, are we now going to get some arbitrary – not arbitrary but—
NASIR: Contrived?
RUSTAM: You know, some space designation when it comes to the workplace. Like, is Zac sitting within three feet of me? If that’s true, then—
TRANG: Is that going to create a regulation where they’re like, “Okay. We’re going to create space regulation.”
RUSTAM: Because they harp on crowded spaces. I mean, they say crowded spaces in the opinion.
TRANG: Right.
RUSTAM: If I’m OSHA, I’m like, “Okay.”
TRANG: Crowded spaces.
RUSTAM: Yeah.
TRANG: Then we’re going to define what a crowded space is, you know?
RUSTAM: Yeah, that’s basically what I would do.
RUSTAM: He has a thing at the very end. This is the question that we’re talking about. He says, “Question before us is not how to respond to the pandemic, but who holds the power to do so?” The answer is clear: Under the law as it stands today, the power rests with the United States and Congress.”
NASIR: That was the essential question for both opinions, for sure – whether they have the power to do so – not whether the US government has the power but whether the legislation or the Congress is giving them authority to do it because I think it seems like all justices agree that, if Congress passed a law requiring it, it seems like they would all allow this mandate to go through.
RUSTAM: You raised that point about the OSHA testing regimen.
ZACHARY: What about that?
RUSTAM: You were talking about how the court sided to the fact that they had not – the Congress and the senate had not.
ZACHARY: Yeah, if Congress had actually done something, then I don’t think they would have disagreed with that. It’s just that they hadn’t given them that power. It’s like they were collecting power.
NASIR: We have clients that have vaccine mandates and they’re not in healthcare. This ruling does not affect that requirement or allowing them to do that, right?
RUSTAM: Not at all.
TRANG: No.
NASIR: Okay. That’s what I think, too. And so, as far as any vaccinate mandates that are employer-based or even state-based, right? Because they even mentioned how states can do it, too. Or, if in the future, states do it or Congress puts something in, this opinion would not prohibit that.
RUSTAM: Yeah.
NASIR: Okay. We’ll communicate that to our clients. All right? Thanks, guys!
RUSTAM: Cool. That was fun.
TRANG: Yeah.
MATT: Keep it sound and keep it smart.
