Employer Vaccine-or-test Rule on Hold, Healthcare Worker Mandate Expands

The US Supreme Court today barred the Occupational Safety and Health Administration (OSHA) from enforcing the large employer COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) while legal challenges to the agency’s authority to impose the ETS work their way through the court below (Nat’l Fed’n of Indep. Bus. v. OSHA, No. 21A244). Under the ETS, private employers with 100 or more employees must develop, implement and enforce a policy requiring employees to get vaccinated against COVID-19 or produce a negative test result at least weekly. The agency pushed back the general compliance deadline to Jan. 10, 2022, and the deadline for the testing alternative (if offered) to Feb. 9, 2022, following an earlier court decision temporarily blocking the mandate. Today’s Supreme Court order means employers do not have to comply with the ETS. The question of whether OSHA has the authority to issue this requirement may eventually end up back at the Supreme Court. 

Separately, the Court is permitting the Centers for Medicare & Medicaid Services (CMS) to enforce its Interim Final Rule (IFR) that requires healthcare workers be vaccinated while legal challenges to that rule continue in lower courts (Biden v. Missouri, No. 21A240). The CMS rule applies to most employees at facilities receiving federal Medicare or Medicaid funding and does not permit testing as an alternative to vaccination. Although effective when published on Nov. 5, 2021, litigation challenging the IFR resulted in delayed implementation deadlines (Jan. 27 for phase 1 and Feb. 28 for phase 2) for 25 states and Washington, DC, while implementation and enforcement in the rest of the country was on hold (CMS External FAQ). Today’s Supreme Court order means that the healthcare staff vaccination requirement is enforceable nationwide. The Court may eventually decide if CMS has the authority to issue a vaccine mandate for healthcare workers. In the meantime, employers covered by this rule in the states previously shielded from enforcement should look for CMS guidance identifying new implementation deadlines.

Lastly, although not addressed by the Supreme Court today, we don’t want to forget about the vaccination requirement for federal contractors. This requirement is currently on hold nationwide as a result of multiple lawsuits. Employers subject to this mandate should continue to watch for developments in these cases.

For background information about the ETS and steps employers can take to relieve the pandemic burden on the workforce, see these earlier blogs:

For further details on the federal contractor vaccination mandate, see this earlier blog:

Federal Contractor Vaccine Deadline Shifted (Nov. 18, 2021)

Katharine Marshall
by Katharine Marshall

Principal, Mercer's Law & Policy Group

Jennifer Wiseman
by Jennifer Wiseman

Principal, Mercer’s Law & Policy Group

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