As we reported in our  January 14, 2022 Alert, the U.S. Supreme Court blocked the enforcement of the OSHA ETS which required employees of companies with at least 100 employees to be vaccinated against COVID-19 or undergo weekly testing. The Supreme Court allowed the enforcement of the Centers for Medicare & Medicaid (CMS) rule requiring healthcare workers at facilities participating in Medicare and Medicaid to be vaccinated against COVID-19.

So—what's left?

Executive Order 14042 (applying broadly to federal government employees and contractors) has been subject to a nationwide injunction preventing enforcement for some time now, and the Safer Federal Workforce Taskforce has notified federal contractors that it will not seek enforcement of this Executive Order at this time. The Biden administration is pursuing an appeal of the injunction.

Executive Order 14043 (applying exclusively to executive branch agencies and their government employees) was enjoined on a nationwide basis last week. This decision is also being appealed by the Biden administration.

Bottom line: For the foreseeable future, the Executive Order for federal government contractors remains tabled. It is possible that individual federal agencies will try to pass workplace safety protocols. And, companies may still choose to impose their own vaccine policies, provided they comply with federal, state and local law.

UPDATE: On Friday, we published an Alert linking to the DOL's guidance on when employers have to pay for time spent testing/getting vaccinated. As we publish this new Alert on Monday, January 24, the guidance has been pulled off the DOL's website. Stay tuned...

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