On January 13, 2021, the Supreme Court issued an Order staying OSHA’s Emergency Temporary Standard requiring employers with 100 or more employees to adopt COVID-19 Vaccination and test policies (referred to as the “Large Employer Mandate”).  In a per curiam opinion, the Court held that:

“The Solicitor General does not dispute that OSHA is limited to regulating “work-related dangers.”. She instead argues that the risk of contracting COVID–19 qualifies as such a danger. We cannot agree. Although COVID– 19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting 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.”

As as result, the mandate will not become effective and employers will not be required to adopt a policy requiring COVID-19 vaccinations or testing.

Although the Court stayed the Large Employer Mandate, it allowed the CMS mandate applicable to certain healthcare providers to move forward.