On-Again, Off-Again Vaccination or Testing: The Supreme Court Stays the OSHA ETS for Employers With 100 or More Employees, but Greenlights the Health-care Worker Mandate

Posted: January 14, 2022

Large Employer Vaccine Mandate Stayed

Large employers with 100 or more employees do not need to worry about complying with the Emergency Temporary Standard (“ETS”) vaccine or test mandate issued by the Occupational Health and Safety Administration (“OSHA”).  At least, not for now.

On January 13, 2022, the United States Supreme Court blocked the enforcement and implementation of the OSHA large employer ETS. The underlying litigations brought by multiple businesses, business organizations, and states are still pending in the Sixth Circuit Court of Appeals.  Therefore, it is possible that the OSHA ETS could be found to be valid and enforceable at some point in the future. However, those litigations are not likely to be resolved any time soon, so employers can breathe a sigh of relief.

In light of the Supreme Court’s decision, large employers who have implemented or are considering a vaccine mandate or vaccine-or-test policy should keep an eye on ongoing developments and evaluate any current polices for compliance with state and local laws. The laws in some locations run contrary to a company’s ability to implement a vaccine mandate. In some localities, companies may also need to permit accommodation requests for reasons other than just disabilities or sincerely held religious beliefs.

Other states and localities have implemented their own vaccine mandates that need to be considered.  In some cases, these mandates apply to businesses without regard to size. The OSHA ETS expressly preempted state and local laws that are contradictory to its requirement.  With the ETS stayed for now, employers should be mindful of any local vaccine-mandate-related laws that could apply. Your employment counsel can advise regarding what requirements apply to your business and can assist you with developing legally-complaint policies for your workforce.

Health Care Workers Vaccine Mandates Remain

On the same day the U.S. Supreme Court blocked the OSHA ETS applicable to large employers, the Court upheld the Centers for Medicare & Medicaid Services (“CMS”) vaccination requirement for staff at hospitals, nursing homes and other health-care facilities as a condition for participating in Medicare and Medicaid.

The Supreme Court decision ended a block on the CMS mandate that had been put in place in a number of states. As a result of the Court’s decision, the CMS vaccination requirement for health-care workers is now back in effect for all states, except perhaps for Texas. The Supreme Court opinion did not reference reversing a Texas District Court decision that stayed the implementation of the CMS rule in Texas, leaving some uncertainty about that ruling.

Covered health-care employers are encouraged to consult with counsel to ensure compliance with the CMS vaccination mandate. Health-care facilities may begin to receive fines if they do not reach compliance by February 28, 2022, which is when workers are expected to be fully vaccinated.  CMS is requiring staff to have received one COVID-19 vaccine dose by January 27, 2022.

For more information about this topic, please contact the authors Devora L. Lindeman and Ian M. Jones or your personal Greenwald Doherty attorney contact.