OSHA’s Vaccine or Test Mandate now Blocked
In a split (6-3) decision, the U.S. Supreme Court blocked the Emergency Temporary Standards to Protect Workers from Coronavirus (ETS), issued by the federal Occupational Safety and Health Administration (OSHA).
The per curiam (unsigned) opinion states, among other things:
OSHA has never before imposed such a mandate. Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID-19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here.
Many States, businesses, and nonprofit organizations challenged OSHA’s rule in Courts of Appeals across the country. The Fifth Circuit initially entered a stay. But when the cases were consolidated before the Sixth Circuit, that court lifted the stay and allowed OSHA’s rule to take effect. Applicants now seek emergency relief from this Court, arguing that OSHA’s mandate exceeds its statutory authority and is otherwise unlawful. Agreeing that applicants are likely to prevail, we grant their applications and stay the rule.
The full opinion is available here.
The OSHA ETS would have required workers to be vaccinated against COVID-19 or to wear masks and be tested weekly (although employers were not required to pay for the testing). For more information, see our November 5, 2021 article, OSHA Issues Emergency Temporary Standard on COVID-19 Vaccinations and Testing Mandates for Employers with 100 or More Employees.
This is big news for large employers because parts of the mandate concerning record-keeping and masks had been scheduled to take effect on Monday, January 10, 2022. OSHA had stated that it would not enforce the testing requirement until February 9, 2022.
The Supreme Court’s ruling staying enforcement of the OSHA ETS while litigation continues in the U.S. Court of Appeals for the Sixth Circuit likely signals the end for OSHA’s attempt to increase vaccination numbers by using federal powers to protect workplace health and safety.
CMS Healthcare Vaccine Mandate Going Forward
In a 5-4 decision, the Court allowed the Centers for Medicare and Medicaid Services’ (CMS Healthcare Vaccine Mandate) interim final rule for healthcare workers, the mandate requiring healthcare workers at hospitals and other healthcare facilities to be vaccinated against COVID-19, to move forward.
This means under the recent CMS guidance, covered facilities not already subject to any of the applicable state mandates be required to ensure that they have developed policies and procedures to implement the vaccine mandate by January 27, 2022, and teams vaccinated no later than February 28, 2022.
Takeaway for Employers: Stay Tuned
Although implementation and enforcement of the ETS is stayed, the litigation is ongoing in the Sixth Circuit. Employers with 100 or more employees should be on the lookout for any decision from the Sixth Circuit, although many are interpreting this decision as an indication that the ETS is unlikely to survive further scrutiny. However, states may yet decide to adopt something similar to the ETS as well.
Our COVID-19 team will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates on the firm’s COVID-19 Resource Center as additional information becomes available. If you have questions about how to ensure that your policies comply with the various applicable laws, please visit our COVID-19 Resource Center; or contact a member of our Team.