OSHA ETS on Employers with 100+ Workers Stayed by Supreme Court

Holding that "[a]lthough Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given the agency the power to regulate public health more broadly," in a 6-3 decision the Supreme Court of the United States, on January 13, 2022, issued a stay of OSHA's Emergency Temporary Standard ("ETS") on vaccination or testing for employers with 100 or more workers.

OSHA's ETS, published November 5, 2021, generally required employers with 100 or more workers to provide proof of vaccination or be tested for COVID-19 regularly, potentially at their own expense, and wear a mask each workday, or face hefty fines. 86 Fed. Reg. 61402 (2021).

OSHA's ETS was immediately challenged in Courts of Appeals across the country. The Fifth Circuit initially entered a stay of the mandate, that was later reversed and lifted by the Sixth Circuit. The Sixth Circuit's ruling left employers staring down the barrel of January 10, 2022 and February 9, 2022 compliance dates.

Now, should they choose to do so, private employers with 100 or more workers can put their pencils down and cease any and all compliance efforts, as "[t]he Secretary's order that 84 million Americans either obtain a COVID-19 vaccine or undergo weekly medical testing at their own expense is no 'everyday exercise of federal power'" and "is instead a significant encroachment into the lives — and health — of a vast number of employees." The case now returns to the Sixth Circuit for full litigation on the merits, after which it could again return to the Supreme Court. The stay entered by the Supreme Court technically lasts only during the time that it takes the parties to litigate before the Sixth Circuit; but, given that by law an OSHA ETS can last only six months and given the Supreme Court's firm words regarding its likely unlawfulness, the OSHA ETS is essentially dead.

Employers are now once again faced with trying to balance individual state mandates and requirements with business needs including staffing shortages due to attribution as well as COVID-19 absences. Many employers were relying on this federal mandate to avoid having to make businesses implement their own vaccination and testing requirements and risk losing employees who refused to comply. This will continue to be the challenge moving forward with vaccination requirements.

CMS Vaccine Mandate on Healthcare Workers Upheld

In contrast to its holding on the OSHA ETS, the Supreme Court will allow the healthcare vaccination mandate, issued by the Centers for Medicare & Medicaid Services ("CMS") on November 5, 2021, to proceed: "Congress has authorized the Secretary to impose conditions on the receipt of Medicaid and Medicare funds that the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services. The rule fits neatly within the language of the statute. After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical provision: first, do no harm".

The CMS rule provides that, in order to receive Medicare and Medicaid funding, participating facilities must ensure all workers, unless exempt for medical or religious reasons, are vaccinated against COVID-19. 86 Fed. Reg. 61555 (2021).

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