Supreme Court Halts OSHA Vaccine ETS, Allows Healthcare Mandate To Move Forward

The Supreme Court has stayed enforcement of the Occupational Safety and Health Administration’s (OSHA’s) sweeping vaccine-or-test requirements for large private companies but allowed a vaccine mandate to stand for employers of medical facilities that take Medicare or Medicaid payments.

OSHA’s Emergency Temporary Standard (ETS) provides that businesses with 100 or more employees require employees to be fully vaccinated, and provide adequate proof of vaccination status, or submit a negative Covid test weekly to enter the workplace. The ETS directed that unvaccinated employees wear masks indoors. The Supreme Court has now held that, although Congress has given OSHA the power to regulate workplace dangers, it has not given the Agency the power to regulate public health more broadly, reasoning, “Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.” The ETS is now stayed while the Sixth Circuit Court of Appeals continues its review on the enforceability of the ETS.

In a separate, simultaneously released ruling on the vaccination rules for healthcare workers, a 5-4 majority upheld the healthcare mandate. Unlike OSHA’s scope of authority, the Supreme Court reasoned that Congress has authorized the Secretary of Health and Human Services to impose condi­tions on the receipt of Medicaid and Medicare funds that, “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.” Because the Secretary of Health and Hu­man Services determined that a COVID–19 vaccine man­date will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients, the Court concluded that a vaccine mandate is “necessary to pro­mote and protect patient health and safety” in the face of the ongoing pandemic. Biden, et al v Missouri, et al, 595 U. S. ____ (2022), p. 61613. The Court reasoned that the Secretary’s healthcare mandates are within the scope of his congressionally delegated authority. Thus, the Supreme Court has now stayed the order granting a preliminary injunc­tion of the healthcare mandate pending disposition of the Government’s ap­peals.

Regardless of the pending circuit courts’ decisions on the ETS and healthcare mandate, the Supreme Court has clearly tipped its hand at how these mandates will ultimately play out.

What does this mean for your business? While all employers retain the right to decide their own vaccination policies, including mandatory vaccines or testing, the ETS’ mandate to vaccinate or test weekly for private employers with 100 or more employees is stayed and is not in effect at this time. For health care employers receiving Medicare/Medicaid funding, the Secretary of Health’s vaccine mandate applies and such employers should be prepared to implement these regulations. Additionally, employers are well advised to consider their state or local requirements as the Supreme Court’s decisions today do not implicate state or local orders or regulations on vaccine policies.

For more information about these decisions, please contact Maria F. Dwyer (mdwyer@clarkhill.com) or Vanessa M. Kelly (vkelly@clarkhill.com).