The Supreme Court ruled to stay the Occupational Safety and Health Administration’s (OSHA) testing and vaccination emergency temporary standard (ETS) on January 13, 2022. The ETS would have established a mandatory vaccination policy for private employers with 100 or more employees.
According to the majority of the Supreme Court, OSHA was not given the power to regulate public health over occupational dangers. The Supreme Court believed challenges to the ETS would most likely succeed as the agency doesn’t have the authority to impose the mandate. For example, the OSH Act only allows the agency to set workplace safety standards; the agency cannot set broad public health measures. Ultimately, they ruled the ETS represented a “significant encroachment into the lives—and health—of a vast number of employees.”
Moving forward, determinations on requiring vaccinations and testing policies will be left to individual employers and state legislation. Employers are not required to comply with the ETS at this time. It is important to note the case has been sent back to the 6th Circuit, so employers will need to monitor legal developments for the final decision on the ETS.
Vaccine mandate for health care workers
Meanwhile, the Supreme Court dissolved the temporary injunctions blocking the enforcement of the Centers for Medicare & Medicaid Services (CMS) emergency rule, which required vaccination of certain health care workers. The CMS rule affects Medicare and Medicaid certified providers and suppliers regulated under the Medicare health and safety standards. This includes hospitals, long-term care facilities, and clinics.
The emergency rule initially gave a deadline of January 4, 2022, to be fully vaccinated against COVID-19, but allows exemptions based on recognized medical conditions or religious beliefs. Employers should be advised there is no weekly testing exemption for unvaccinated workers.
After the Supreme Court’s ruling, it is likely the CMS will resume enforcement of the vaccination emergency rule. Affected health care facilities that did not implement a vaccination policy should develop one as soon as possible.
Employers are advised to stay alert for updates on the ETS and the CMS emergency rule as changes may occur.