Supreme Court Halts Enforcement of Large Employer OSHA Vaccine ETS, but Allows Healthcare Worker Vaccine Mandate

On January 13, 2021, the US Supreme Court granted a stay of enforcement on the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) vaccine mandate for employers who employ 100 or more workers. The Court did not decide on the merits of the case challenging the mandate; rather, it concluded that the parties challenging the mandate would likely succeed on the merits of the case and so a stay was appropriate. Accordingly, the government cannot enforce this mandate until the resolution of the pending litigation challenging it, which is currently in the US Court of Appeals for the Sixth Circuit. You can find more information on the ETS in this December 21, 2021, Compliance Corner article. The stay applies to the employer vaccine mandate, meaning employers do not have to comply with the OSHA ETS, at least for now.

For employers with 100 or more workers, the OSHA ETS litigation could take some time, and it is possible that the Supreme Court will strike down the mandate if a party to the lawsuit appeals the ultimate decision of the Sixth Circuit. However, this stay does not prohibit employers from implementing their own vaccine mandate or testing policies, subject to reasonable accommodation requirements under the Americans with Disabilities Act and state law. Employers should consult with employment law counsel if they are considering their own vaccine and testing policies.

Separately, the Supreme Court did not grant another request to stay a vaccine mandate relating to healthcare workers who work for entities that receive funds from Medicare or Medicaid. As a result, that mandate is now in effect. Employers that are healthcare providers should review their obligations under this mandate. See this January 4, 2022, Compliance Corner article for more information.

NFP will continue to monitor any developments on these issues, and will provide more guidance in our Compliance Corner newsletter.

Supreme Court Opinion on Large Employer OSHA ETS

Supreme Court Opinion on Health Care Worker CMS Mandate