Q: Did the U.S. Supreme Court issue a ruling in the challenge to OSHA’s vaccine and testing emergency temporary standard (ETS) and CMS interim final rule (IFR)?

A: Yes. On January 13, 2022, the Court granted the applications for stays of the OSHA ETS. Conversely, the Court granted the federal government’s request to overturn the injunctions that had halted the IFR.

Thus, the IFR will move forward, while the ETS will return for further litigation before the Sixth Circuit Court of Appeals, which initially lifted the Fifth Circuit’s own stay of the ETS’s enforcement and which prompted the Supreme Court review on an expedited basis. It is possible (but considerably unlikely) that the Sixth Circuit could reach a different conclusion after reviewing additional evidence when it considers the ETS on the merits. However, for all intents and purposes, it is likely that the current OSHA ETS will remain unenforceable since the Supreme Court has concluded as a matter of law that OSHA does not possess the authority from Congress to impose it on workforces as it was designed.

States may impose their own vaccination or testing emergency temporary standard, where such states (often referred to as “state-plan states”) have their own state regulation of workplace safety, but to date, very few states have chosen to do so. And of course, those state emergency temporary standards themselves may be challenged on the same basis that the federal standard was successfully challenged — that it exceeds the agency authority granted to issue such emergency workplace requirements.

The Court left open the possibility that OSHA could regulate workplaces “[w]here the virus poses a special danger because of the particular features of an employee’s job or workplace,” noting that “targeted regulations are plainly permissible.” Thus, it is also possible that OSHA could revise the presently unenforceable ETS or issue additional standards specific to particular industries or workplaces moving forward. OSHA may also propose a permanent workplace standard to address virus concerns and will likely update its nonbinding guidance on COVID-19 safety for all employers, which it has not done since summer 2021.

Employers that wish to institute a vaccination policy (or a vaccination and testing policy) may still choose to do so. However, any such policy will be subject to state-specific requirements (such as those in Florida and Texas) previously preempted by the ETS.