Employment Law Report
Supreme Court Blocks Implementation of OSHA Vaccine or Test Mandate, but Allows Vaccine Mandate for Healthcare Workers to Proceed
Written by: Mitzi D. Wyrick
OSHA ETS. The Supreme Court has issued a stay preventing the Occupational Safety and Health Administration (OSHA) from implementing the Emergency Temporary Standard (ETS) mandating that employers with 100 or more employees establish policies requiring their employees to be vaccinated or undergo weekly testing. The Court stated that OSHA lacked the expertise and statutory authority to enact “broad public health measures,” and that the mandate was not a workplace occupational health and safety standard. The Court noted that COVID-19 poses a “universal risk” rather than an occupational hazard in most workplaces. Nevertheless, the Court did acknowledge that OSHA may have the ability to implement health and safety regulations “[w]here the virus poses a special danger because of the particular features of an employee’s job or workplace.” Ultimately, because the Court viewed the ETS as a public health measure rather than a workplace safety standard, the Court determined that it was the duty of elected officials rather than OSHA to weigh the potential loss of jobs and compliance costs against potential illnesses and loss of life.
The ETS litigation has now been returned to the Sixth Circuit Court of Appeals for further consideration of the merits. Because the ETS was only in effect for sixth months from its publication in November, the ETS is likely to expire before any briefing or argument is completed on the merits. OSHA has not yet stated whether it intends to continue to litigate the lawfulness of the ETS, to attempt to implement a narrower standard, or to abandon the ETS altogether.
CMS Mandate. Unlike the OSHA ETS, the Supreme Court found that the Centers for Medicare and Medicaid Services (CMS)’s vaccine mandate “fit[s] neatly within the language of the statute.” According to the Court, CMS could impose the condition of a mandatory vaccination for employees on the receipt of Medicaid and Medicare funds that “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.” Recognizing that COVID–19 is a highly contagious, dangerous, and deadly disease, the Court permitted CMS’s mandate to go forward because of CMS’s determination that a COVID–19 vaccine mandate will substantially reduce the likelihood of healthcare workers contracting the virus and transmitting it to their patients. The Court found that because CMS routinely imposes conditions of participation relating to the qualifications and duties of healthcare workers, CMS was justified in implementing a vaccine mandate to protect patient health and safety.