In a 6-3 per curiam decision, the United States Supreme Court has halted the Biden Administration's vaccine mandate for large employers. The Court stayed the Occupational Safety and Health Administration's Emergency Testing Standard (“ETS”) holding that the ETS was an overreach of OSHA's authority to set workplace safety standards. Instead, the Court found the ETS was more akin to a general public health measure, which only Congress and the states had the ability to issue. The Court, however, left open the possibility that OSHA could have the authority to issue vaccine mandates or other workplace regulations in certain workplaces where COVID-19 poses a “special danger” to workers because of the nature of the workplaces, such as testing laboratories or workplaces where social distancing is impossible.
So what does this mean for employers who started to comply with the ETS? These employers are now able to decide whether they wish to have a vaccine mandate or a “shot or test” mandate for their workforces (subject to state or local law). With the Omicron variant causing disruptions in worker availability, many private employers may decide that a vaccine mandate or a “shot or test” mandate is appropriate for their workforces (subject to state or local law). With the CDC's isolation/quarantine guidance now being based on an individual's vaccination status, some employers may decide to require employees to produce evidence of vaccination status in order to determine when an exposed or positive employee can return to work (again, subject to state or local law). Because of the interplay with other laws, including state legislation and wage and hour issues, employers are encouraged to consult with counsel about how to proceed.
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