United States: What Employers Need To Know About Supreme Court Ruling

The Occupational Safety and Health Administration ("OSHA") "Vaccine or Test" Emergency Temporary Standard ("ETS") is again stayed, this time nationally. The United States Supreme Court stayed the rule implemented by the Secretary of Labor through OSHA requiring a vaccine mandate for daily testing for employees of employers with 100+ employees. The Supreme Court stay effectively means that the more than 84 million workers that this mandate would have impacted are now entitled to independently choose whether they will vaccinate or not. 

Pursuant to this stay, the federal government may not impose any such a requirement on employees. The Court found that the Secretary lacked authority to impose the mandate and that ordering 84-million-Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense is a significant encroachment into the lives—and health—of a vast number of employees. The stay will remain in place until the final disposition of all litigation. The Supreme Court's stay, as a practical matter, will remain in effect longer than the ETS, which expires in May 2022.

The Court will permit the Secretary of Health and Human Services mandate that requires its covered staff to be vaccinated against COVID-19. The rule requires providers to offer medical and religious exemptions and does not cover staff who telework full-time. Employers who fail to comply may be subjected to monetary penalties, denial of payment for new admissions, and ultimately termination of participation in the CMS programs. 

The impact of this rule affects approximately ten (10) million healthcare workers. The Court held that the Secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID–19.

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