Today, the United States Supreme Court decided to block the OSHA Emergency Temporary Standard (“ETS”) requiring that employers with 100 or more employees ensure that their employees are vaccinated or tested weekly for COVID-19. While the decision is not a final ruling on the validity of the OSHA ETS, it suspends the vaccination or testing requirement and effectively spells the end of the requirement. In making its decision, the Supreme Court found OSHA’s ETS to be “unlawful.”

In a separate decision today, the Supreme Court upheld the legality of the Centers for Medicare & Medicaid Services (“CMS”) health care mandate requiring that certain health care workers be fully vaccinated by February 28, 2022, reversing the decision of lower courts that had temporarily blocked the mandate. The CMS applies only to Medicare- and Medicaid-certified providers and suppliers. In the health care mandate case, the Supreme Court noted that while the global pandemic does not allow federal agencies to exercise powers that Congress has not conferred upon them, such unprecedented circumstances provide no grounds for limiting the exercise of authority the agencies do have – – possibly providing a generalized blanket for government agencies to press the limits of their authority.

The Supreme Court has not yet addressed President Biden’s executive order mandating COVID-19 vaccines for certain federal government contractors. The federal government contractor vaccine mandate remains blocked by a decision issued by the Eleventh Circuit Court of Appeals on December 17, 2021. The vaccine mandate for federal contractors will undoubtedly head to the Supreme Court after the Eleventh Circuit hears additional arguments later this month.

Below are links to today’s Supreme Court decisions:

Regarding OSHA mandate decision:

https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf

Regarding HHS mandate decision:

https://www.supremecourt.gov/opinions/21pdf/21a240_d18e.pdf