Supreme Court Ruling Halts OHSA Vaccinate-or-Test Rule

Supreme Court Ruling Halts OHSA Vaccinate-or-Test Rule

January 15, 2022

On Thursday, January 13, the United States Supreme Court temporarily stayed the Occupational Health and Safety Administration’s emergency temporary standard. The ETS mandated employers with 100 or more employees to require vaccination from all employees, or weekly testing and masking obligations for unvaccinated employees. The rule would have affected over 80 million Americans. The court did allow the vaccination mandate for most healthcare workers, which we’ll address in a moment. 

With a 6-3 majority, the court decided that the Biden Administration, and OSHA by proxy, had overstepped its authority. The majority stated in an unsigned opinion that “OSHA has never before imposed such a mandate.”

The stay largely releases employers from compliance with the ETS. This means that large employers who were preparing to comply with the rule may halt their efforts for the time being, but are still subject to any state or local laws. 

But this temporary stay doesn’t mean the ETS is gone forever.

Back to the Sixth Circuit

Let’s briefly review the history of litigation surrounding OSHA’s ETS. The Fifth Circuit Court of Appeals originally issued a stay of the ETS on November 6, 2021. The many challenges to the ETS presented by businesses and states were consolidated and brought to the Sixth Circuit Court of Appeals, which then lifted the Fifth Circuit’s temporary stay. Further petitions against the ETS brought the case to the Supreme Court, which stayed the ETS on Thursday.

The Supreme Court’s stay on the ETS will be in effect until the Sixth Circuit resolves whether OSHA has the authority to issue the ETS. The court’s ruling means that it believes the position of the parties who are contesting OSHA’s authority in the matter will prevail in the lower court as well. 

The Sixth Circuit may find that OSHA has the authority and thus resurrect the ETS. This means that employers should maintain their current records in case they are necessary later. 

Healthcare Worker Vaccination Mandate

In a 5-4 decision on Thursday, the Supreme Court lifted the stay on the ETS issued by the Centers for Medicare and Medicaid in 25 states. The CMS ETS will go into effect nationwide for healthcare facilities that participate in Medicare and Medicaid. The case will go back to the Fifth and Eighth Circuit Court of Appeals, which originally enacted the temporary stay. 

The rule does allow for medical and religious exemptions and could impact roughly 76,000 healthcare facilities across the country.