U.S. Supreme Court Stays Federal OSHA’s Large Employer COVID-19 Vaccine and Testing Mandate; CMS Mandate Upheld
U.S. Supreme Court Stays Federal OSHA’s Large Employer COVID-19 Vaccine and Testing Mandate; CMS Mandate Upheld

On January 13, 2022, the U.S. Supreme Court stayed the federal Occupational Safety and Health Administration (OSHA)’s Emergency Temporary Standard (ETS), which required large employers (with 100 or more employees) to institute a policy requiring their employees to be vaccinated against COVID-19 or undergo weekly testing. The Supreme Court’s ruling stayed the vaccine and testing mandate on the basis that OSHA had exceeded its authority in enacting the emergency rule (and that those challenging the mandate were likely to succeed). The Court described the federal ETS as “a significant encroachment into the lives—and health—of a vast number of employees.” Enforcement of the OSHA rule is currently on hold, pending further litigation on the merits.

Despite staying the vaccine and testing mandate for large private employers, in a separate ruling the same day, the Supreme Court upheld the Centers for Medicare and Medicaid Services (CMS)’s COVID-19 vaccine requirements for certain healthcare workers. The Court reasoned that the CMS vaccine mandate serves to protect patients and ensure that healthcare providers take steps to avoid transmitting COVID-19 to patients. The Court noted, “[i]t would be the very opposite of efficient and effective administration for a facility that is supposed to make people well to make them sick with COVID–19.”

The Supreme Court’s decision confirms that large employers are not currently required to implement a workplace COVID-19 vaccine and testing program per the federal ETS. Large employers nationwide thus remain in a period of watchful waiting on the final outcome of this issue. If the federal ETS is ultimately upheld, it will not automatically apply to California employers. Rather, Cal/OSHA would first need to decide if it will adopt the federal ETS as-is or its own equally effective rule for the state’s employers. Presumably, the stay of the federal ETS may further delay Cal/OSHA’s decision-making on that front.

It is important to remember that these Supreme Court rulings do not affect the federal contractor vaccine mandate which is the subject of a nationwide injunction and currently on appeal in the Eleventh Circuit Court of Appeals.  Nor do these rulings affect the rights of a private sector employer (of any size) to choose to impose a vaccine mandate consistent with current EEOC guidance, including in response to the rise in COVID-19 infections and exposures from the Omicron variant.

In all instances, employers with union-represented workforces should ensure that they are notifying and providing an opportunity to bargain to unions representing their employees.  A failure to provide notice and an opportunity to bargain before implementing vaccine requirements would likely raise issues under the National Labor Relations Act, enforced by the National Labor Relations Board.

On a separate note, California employers must ensure they are following the ETS issued by Cal/OSHA that has been in effect since November 2020 (as amended in June 2021 and in January 2022).  Do not hesitate to contact your employment counsel, or the authors of this article, with questions regarding the Supreme Court’s stay, its decision regarding the CMS mandate, or for assistance with COVID-19 related workplace policies. 

This AALRR post is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process. 

 © 2021 Atkinson, Andelson, Loya, Ruud & Romo

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