Supreme Court Strikes Down OSHA's Covid-19 Vaccination and Testing ETS: What This Means for Employers

Gibney Anthony & Flaherty, LLP

On January 13th, the Supreme Court in National Federation of Independent Business v. Department of Labor, invalidated the Occupational Safety and Health Administration’s (OSHA) COVID-19 vaccine-or-test Emergency Temporary Standard (ETS) for large private employers (employers with 100 or more employees). The January 13 decision throws out the ETS issued by OSHA in November to require large employers to develop, implement, and enforce a COVID-19 vaccination-or-testing policy.

The Decision

In a 6-3 decision, the Supreme Court held that the Occupational Safety and Health Administration overstepped its authority by seeking to impose the vaccine-or-test rule on all U.S. businesses with at least 100 employees. “OSHA has never before imposed such a mandate,” the Court noted. “Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here.”

The Court ruled that OSHA lacked the authority to impose a vaccine mandate on private employers because the law that created OSHA “empowers the Secretary (of Labor) to set workplace safety standards, not broad public health measures.” The Court refused to uphold the mandate which effectively ordered 84 million Americans to either obtain a COVID-19 vaccine or undergo weekly medical testing at their own expense. The Supreme Court held that upholding the OSHA ETS “would significantly expand” OSHA’s authority beyond the limits Congress set.

What this Means for Private Employers

  • While the Supreme Court’s decision invalidated the ETS and narrowed OSHA’s authority, the decision does not limit the right of employers, states, or municipalities, if they so choose, to require employees to be vaccinated against COVID-19 (while giving consideration for proper religious and medical exemptions) or require the unvaccinated to be tested regularly.
  • Employers will now be subject to state and local guidelines and restrictions with respect to COVID-19 protocols in the workplace. Employers with multiple locations may be faced with inconsistent, and potentially contradictory, standards governing worksites in different states and localities.
  • Employers are advised to review their Covid policies in light of the now invalidated OSHA standards to ensure that they are compliant with state and local laws applicable to the locations where they operate.

What this Means for Health Care Employers

  • On the same day that the Supreme Court struck down the OSHA ETS applicable to all large employers, it upheld the vaccine mandate applicable to health care employers who receive federal payments from either Medicare or Medicaid.
  • In a 5-4 decision, the Court in Biden v. Missouri held that the vaccine mandate for health care workers was justified by the spending clause of the Constitution, which allows the federal government to impose conditions when it provides funding for programs like Medicaid and Medicare.
  • Health care provider employers that receive any Medicare or Medicaid payments will need to comply with the federal vaccine mandate for health care workers.

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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Gibney Anthony & Flaherty, LLP

Gibney Anthony & Flaherty, LLP on:

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