Supreme Court Blocks OSHA's Vaxx-or-Test ETS, Returns Case to Sixth Circuit

Jan 13, 2022   Print PDF

Related Practice: Employment

On January 13, 2022, the Supreme Court stayed implementation of OSHA’s Emergency Temporary Standards (ETS) requiring employee vaccination or weekly testing at businesses with at least 100 employees. A six-justice majority blocked the ETS from going into effect. It reasoned that the applicants challenging the ETS were “likely to prevail” because OSHA is empowered “to set workplace safety and health standards, not broad public health measures.”

The case now returns to the Sixth Circuit (which had previously allowed the ETS to go into effect) to review the case on its merits. The ETS will not be enforced while the case is pending before the Sixth Circuit, and a possible final review by the Supreme Court.

This opinion was paired with a second opinion allowing enforcement of a separate vaccination rule covering healthcare providers that receive federal funds. In that case, the Court reasoned, in a five-justice majority, that “healthcare facilities that wish to participate in Medicare and Medicaid have always been obligated to satisfy a host of conditions that address the safe and effective provision of healthcare.” A COVID-19 vaccination requirement is consistent with the conditions of participation routinely imposed by the Secretary of Health and Human Services.

I’m a large employer. What’s next?

Companies with 100 or more employees who were subject only to the ETS vaccine-or-test mandate are no longer required to promulgate policies, gather vaccination records, provide paid time off for vaccination, or maintain a roster of vaccinated employees. While the ETS faces review on its merits by the Sixth Circuit, it is unlikely that the ETS, in its current form, will ever take effect.

It is possible that OSHA or another agency will attempt to issue a narrower rule addressing the concerns raised by the Supreme Court in today’s ruling. Any such rule would likely be focused on particular industries or high-risk workplaces, as the majority complained that the ETS was too blunt an instrument, such that “most lifeguards and linemen face the same regulations as do medics and meatpackers.”

My employees and customers supported a vaccine requirement. Can I still go ahead?

Absolutely. Employers can impose stricter rules than required by law. Companies can proceed to implement their ETS-compliant policies, or review and adjust their policies to best suit their particular circumstances.

I’d like to drop my company’s vaccine requirement. So I have nothing to worry about? 

The ETS will not be enforced, but your Company may be subject to other vaccination requirements, for example those applying to federal contractors, or Washington state requirements covering healthcare providers.

Contact Aviva Kamm, Sarah Wixson, Amy Alexander, Maricarmen Perez-Vargas, or any member of the Employment Group for compliance help.