Today, the U.S. Supreme Court issued a stay of the November 4, 2021 Emergency Temporary Standard (“ETS”) developed by the Occupational Safety and Health Administration (“OSHA”). OSHA’s ETS had provided, among other requirements, that employers with 100 or more employees would have to ensure their employees are vaccinated or, if unvaccinated, that they wear protective face coverings and take weekly COVID-19 tests.
Following the stay, and until further action by the U.S. Supreme Court on the merits of the case, employers will no longer be required to comply with the ETS (despite the fact that many employers have been in compliance since the ETS took effect on January 10). Employers continue to have the right to develop and implement their own policies governing employee vaccination and masking, so long as those policies comply with relevant federal and state laws. Many employers have implemented vaccine mandates, but now they are not required to do so by federal law.
The Supreme Court separately today upheld a federal mandate as to health care workers at facilities that receive federal funding. As a result, employers subject to that rule still will have to abide by those standards.
We will provide additional updates as associated litigation and rulemaking develops. For additional background, please see our advisory, U.S. Supreme Court Hears Oral Arguments on Challenge to OSHA’s ETS.