U.S. Supreme Court Blocks OSHA ETS for Large Employers but Allows Vaccination Requirements for Healthcare Workers to Proceed

January 13, 2022 - Katherine Busbee
The U.S. Supreme Court has issued a stay against the OSHA Emergency Temporary Standard (ETS) for employers with 100 or more employees. The ETS requires covered employers to implement a COVID-19 policy that either 1) requires employees to be vaccinated or 2) gives employees the option between being vaccinated or wearing a face covering and getting tested every 7 days.

Since it was issued on November 5, 2021, the ETS has been entangled in a number of legal challenges across the country. The 5th Circuit issued a nationwide stay against it on November 12, 2021. The 6th Circuit lifted that stay on December 17, 2021, allowing the ETS to move forward. OSHA announced that covered employers would be required to implement their policies by January 10, 2022, and would have to begin testing unvaccinated employees by February 9, 2022. Today’s decision from the Supreme Court reinstates a temporary stay on the ETS pending its full review by the 6th Circuit or a full review by the Supreme Court if one is sought.

The Court, however, allowed a rule to go forward requiring healthcare workers to be vaccinated. The Centers for Medicare and Medicaid Services (CMS) issued a rule on November 4, 2021, that requires healthcare providers participating in Medicare and Medicaid programs to require staff to be vaccinated. The CMS rule has also faced legal challenges, and until today, was blocked in 25 states. However, today’s decision from the Supreme Court lifts the temporary injunction in those states and allows the rule to move forward. CMS announced on December 28, 2021, that covered employers must require their staff to receive the first dose of a COVID-19 vaccine by January 27, 2022, and that all staff must be fully vaccinated by February 28, 2022.

With the Supreme Court’s decision to reinstate the stay on the OSHA ETS, employers do not have to comply with the ETS at this time. However, many employers covered by the ETS may have already implemented a policy, as they were required to do so by January 10, 2022. Employers who have already implemented a policy should consult with legal counsel about whether to revise their current policy. For employers who have not implemented a policy, it is still wise to keep an eye on new developments.

Covered healthcare employers under the CMS vaccine rule should begin working on a vaccination policy to comply with the timeline announced by CMS, which requires all staff to receive their first dose by January 27, 2021. CMS has not announced if they will extend this timeline to give employers more time to comply.

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If you have questions about this topic or other employment law matters, please contact PerryChris, Katie or the HSB Employment Law practice team.