Recently, the U.S. Supreme Court blocked the OSHA Emergency Temporary Standard (“ETS”) that would have required all employers with 100+ employees to mandate vaccination or testing, while allowing the Department of Health and Human Services’ vaccine mandate for those touching healthcare facilities to go into effect. In striking down the OSHA requirement, the Court found that OSHA had exceeded its authority by implementing a requirement that was not specific to workplace safety.

Here are the key takeaways for employers:

• The OSHA ETS is blocked, so there is no requirement for employers to implement a vaccination/testing requirement (other than in specific industries).
• Employers that want to implement a vaccine and/or testing requirement may do so, subject to legal requirements (including both accommodation obligations and state limitations on vaccine/testing mandates).
• In states that prohibit or limit vaccine/testing requirements, employers will have to comply with those prohibitions/limitations and won’t be able to rely on the OSHA ETS as a reason to implement.
• Employers that touch healthcare facilities need to comply with the Department of Health and Human Services vaccine mandate.
• It’s possible that state or local government authorities may take steps to implement mandates – it remains to be seen which do so, and whether they are upheld.

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