Greenberg Glusker LLP

Greenberg Glusker LLP

On January 13, 2022, the Supreme Court of the United States blocked the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) from taking effect for the foreseeable future. The ETS required employers with 100 or more employees to implement a mandatory COVID-19 vaccination or weekly testing policy.

As previously reported here, OSHA ETS Vaccine Mandate Back In Effect (For Now), after OSHA issued the ETS in November 2021, multiple legal challenges were filed, and prior to the cases being consolidated in the Sixth Circuit, another Federal Court temporarily stayed the ETS. On December 17, 2021, the Sixth Circuit lifted the nationwide stay of the ETS, and OSHA announced that it would start enforcing the ETS on January 10, 2022, for all requirements except testing, and on February 9, 2022, for testing requirements.

Thereafter, various parties filed applications to the Supreme Court of the United States requesting that it issue emergency relief staying the ETS pending the litigation before the Sixth Circuit.  On January 13, 2022, the Supreme Court issued its 6 to 3 opinion staying the ETS, finding that OSHA acted outside of its authority in imposing the mandate. The Supreme Court wrote that while OSHA has authority to set workplace safety standards, it does not have authority to impose broad public health measures (and the Court considered the ETS vaccine and testing mandate to be the latter).

While the Supreme Court’s decision means that employers do not need to comply with the ETS for now, there is still some uncertainty going forward as the Sixth Circuit makes its determination whether the rule is valid. However, should the Sixth Circuit not strike down the ETS, it is unlikely that the ETS would survive another challenge before the Supreme Court.

Despite the current stay of the ETS, private employers may still elect to adopt vaccination requirements. As discussed here, E.L.F. on a Digital Shelf: Employment Law Facts, A Summary of California’s New 2022 Employment Laws, if an employer does so, it must be prepared to address requests for exemption and reasonable accommodations.

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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