In a decision that is likely to have wide-ranging implications for employees and employers alike, the Supreme Court, on January 13, blocked the OSHA Emergency Temporary Standard (ETS) mandate that required employers with 100 or more employees to ensure  that employees be vaccinated or tested weekly.

The OSHA ETS is one of three vaccine mandates that are pillars of President Biden’s comprehensive plan to prevent the spread of COVID-19. The Biden administration estimated that the OSHA ETS would have required approximately 84 million employees to either be vaccinated or tested.

The fundamental rationale for the Supreme Court’s decision was that OSHA exceeded its regulatory powers in issuing the ETS: “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly.  Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.” The case now returns to the United States Court of Appeals for the Sixth Circuit to determine whether to uphold or permanently block the ETS. Employers will not have to comply with the ETS while the litigation continues, absent a new court order.

The decision comes less than a week after the Supreme Court heard oral arguments, on an expedited basis, on a blizzard of legal challenges to the OSHA ETS, as well as a separate vaccine mandate issued by the Centers for Medicare and Medicaid Services (CMS) for covered providers who participate in Medicaid and Medicare government programs as well as others covered by the CMS vaccine mandate. 

Although the Supreme Court struck down the OSHA ETS, it allowed the CMS vaccine mandate to stand. According to government estimates, the CMS mandate regulates more than 10.3 million health care workers in the United States. For employers covered by the CMS health care directive, the dates of compliance have been extended.  Employees must receive their first COVID-19 vaccine dose by January 27 and be fully vaccinated by February 26. Also, employers are required to ascertain the vaccination status of employees and develop vaccination policies that include religious and medical exemptions and accommodations.

Importantly, the Supreme Court did not consider Executive Order 14042 and the corresponding Safer Federal Workforce Task Force Guidance, which requires employees working on or in connection with covered federal contracts or working at a covered contractor workplace to be vaccinated, in its expedited hearing. Currently, Executive Order 14042 and the Task Force Guidance are stayed in light of a nationwide injunction issued by a federal district court.

Employers should promptly consult with counsel to determine the impact of the Supreme Court’s rulings on existing or planned vaccination and/or testing policies.  In this regard, employers should consult with counsel regarding any state laws that prohibit, limit, or require employer mandated COVID vaccinations, and any state OSH plans that apply to the organization. More broadly, employers should consult with counsel to determine, notwithstanding the Supreme Court’s rulings, whether they should continue to proceed with mandatory vaccine policies (or vaccine and testing policies) and (if so) in what manner.

These determinations are often fact specific and typically involve consideration of many factors including, among other things, the following:

  1. The particular industry that an employer is in;
  2. Whether the employer has fiduciary responsibilities (e.g., if they serve a vulnerable population;
  3. Whether there are local or state laws that require employers to, or prohibit employers from, implementing the vaccine mandates;
  4. The current vaccination status of their employees; and
  5. The nature and extent of the community spread in a particular location. 

Finally, employers should continue to monitor litigation concerning the OSHA ETS, federal contractor vaccine mandate, and the CMS vaccine mandate.

For more information, contact Marc Engel at [email protected] or Nicole Behrman at [email protected].