SCOTUS Axes Biden’s Vaccine or Testing Mandate for Large Employers

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After hearing oral argument on January 7, 2022, on January 14, 2022, the Supreme Court issued a ruling staying the Biden administration’s vaccine or testing mandate for large employers.

As many doubtless know, on September 9, 2021, the Biden administration announced a sweeping six-pronged plan aimed at addressing the pandemic, which included a requirement that all employers with 100 or more employees have their employees vaccinated or tested weekly for COVID-19. In setting forth his plan, the president charged the Occupational Safety and Health Administration (“OSHA”) with developing a rule –under its authority granted by Congress— to enact and enforce his mandate, which was published in the form of an Emergency Temporary Standard (“ETS”) on November 4, 2021.

Shortly after the ETS was published, a lawsuit was filed by several states, businesses, and non-profit organizations to enjoin its enactment and enforcement, which was temporarily granted by the Fifth Circuit Court of Appeals. Thereafter, the Sixth Circuit Court of Appeals was selected via lottery to hear several consolidated challenges to the ETS, and after hearing oral argument, in a 2-1 decision the Sixth Circuit decided to uphold the OSHA rule and dissolve the Fifth Circuit stay on December 17, 2021.

This Sixth Circuit decision was almost immediately appealed to the Supreme Court, who issued its decision reversing the lower court’s decision. In its opinion, the Court took issue with the fact that neither OSHA nor Congress had previously enacted such a mandate, and ultimately found that the scope of the ETS went far beyond OSHA’s authority to ensure occupational safety and safe and healthful working conditions. Specifically, the Court held that the rule exceeded OSHA’s rulemaking authority granted by Congress, as Congress merely enabled the agency to “set workplace safety standards, not broad public health measures.”

Despite this holding, the Court did note that its decision does not preclude OSHA from regulating occupation-specific risks related to COVID–19 – for instance where the virus poses a special danger because of the particular features of an employee’s job or workplace. Indeed, the Court separately decided to keep in effect the vaccine mandate requiring that that employees in most health care settings that receive Medicare or Medicaid reimbursement be vaccinated. However, as a result of the Court’s decision, private employers with 100 or more employees are no longer required to mandate vaccination or weekly testing for COVID-19 amongst its employees.

I Am A Covered Healthcare Facility Receiving Reimbursement from Medicare or Medicaid, What Now?
If an employer is a healthcare facility identified by Centers for Medicare & Medicaid Services as being covered under its rule mandating employee vaccination, they should still move forward with plans for compliance with the healthcare Interim Final Rule. However, it is recommended that such employers proceed upon the advice of counsel in doing so.

What if My Business Is Not A Covered Healthcare Facility Receiving Medicaid or Medicare Reimbursement?
In light of the Supreme Court’s ruling, employers with 100 employees or more are no longer required to mandate vaccination or weekly testing for COVID-19 among its employees. However, despite the fact that OSHA mandate has been stayed, the Court’s decision does not prohibit employers from implementing a company-specific vaccination or testing mandate if they so choose. However, if an employer does decide to continue with such a mandate, they should be mindful of federal, state, and local laws in this area, and work with counsel to ensure the permissibility of its proposed mandate and compliance with applicable law.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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