On January 13, 2022, the U.S. Supreme Court issued a stay on the Department of Labor’s Occupational Safety and Health Administration (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). The ETS, released on November 4, 2021, mandates COVID-19 vaccinations or at least weekly testing for workers at companies in the U.S. with 100 or more employees.1
In its order, the court states that “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.”
As a result of the Supreme Court's order, the OSHA ETS is stayed and now goes back to the U.S. Court of Appeals for the Sixth Circuit for a final determination (although in light of the Supreme Court’s ruling, the Biden administration faces an uphill climb to be able to ever implement the rule, if it even decides to continue the lawsuit).
Employers may still choose to impose a COVID-19 vaccination mandate on their own, subject to any applicable state laws. All employers should review and comply with any other applicable COVID-19 vaccine-related mandates (both state and local).
Note: The Centers for Medicare & Medicaid Services COVID-19 vaccine mandate for employees in healthcare facilities that receive Medicare or Medicaid was upheld and can proceed.
1 For more information on the OSHA ETS, see “OSHA issues COVID-19 vaccine mandate guidance,” Insider, November 17, 2021.
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