On January 13, 2022, the U.S. Supreme Court blocked OSHA’s “vaccine or test” Emergency Temporary Standard (“ETS”) mandate in a split 6-3 decision.  Without the ETS, employers are not required to mandate vaccinations, but employers must still ensure the workplace has appropriate COVID-19 protocols.

The ETS required employers with 100 or more employees to either mandate COVID-19 vaccinations or require employees undergo weekly COVID-19 testing and wear face coverings in the workplace.  The Court’s most recent decision stayed the ETS and remanded the case to the Sixth Circuit Court of Appeals.

The Supreme Court determined that OSHA’s role is to regulate workplace safety.  Therefore, the Court determined that although COVID-19 “is a risk that occurs in many workplaces,” it is no different from the “day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.”  The three dissenting justices, however, disagreed, emphasizing that widespread COVID-19 transmission and infection remains a dangerous threat to the country’s health and safety.

The Court additionally determined that the ETS exceeded Congressional authority and that “[p]ermitting OSHA to regulate the hazards of daily life – simply because most Americans have jobs and face those same risks while on the clock – would significantly expand OSHA’s regulatory authority without clear congressional authorization.”   

Despite the Supreme Court’s halt of the ETS, in a companion decision, the Court upheld the Centers for Medicare & Medicaid Services (“CMS”) rule requiring full vaccination of all health care workers at hospitals, nursing homes, and other facilities receiving Medicare and Medicaid funding. [1] In upholding the CMS rule, the Court cited CMS’ long history of regulating healthcare providers that receive Medicare and Medicaid funding and found that CMS acted within its statutory authority. The CMS mandate will have a broad impact on the healthcare industry since nearly all healthcare providers, employers, and employees receive Medicare and Medicaid funds. 

In light of the Court’s halt of the ETS, non-healthcare employers should implement COVID-19 policies appropriately tailored to their businesses, workplace, and employees.  In doing so, employers must consider any applicable state and local laws regarding COVID-19 vaccination, testing, and mask usage.

COVID-19 laws change on a regular basis, so employers should remain vigilant to ensure they remain compliant.  Other COVID-19 employment issues include employees who challenge their workplace’s COVID-19 policies and/or request policy exemptions from their employers due to religious, political, or other personal reasons.  Further, employers must protect their employees’ confidential medical information.