GrayRobinson Labor & Employment Team: U.S. Supreme Court Stays OSHA ETS; Allows CMS to Proceed

Insight | January 13, 2022

U.S. Supreme Court Stays OSHA ETS; Allows CMS to Proceed

In a split decision on Thursday, January 13, 2022, the U.S. Supreme Court entered a stay of the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) vaccine mandate noting the applicants for the stay were likely to succeed in their claims that the Secretary lacked the authority to impose the mandate. The ETS requires private employers with at least 100 employees to ensure that more than eighty-four million workers across the country receive COVID-19 vaccinations or obtain weekly testing and wear masks in the workplace. In its opinion the Court discussed the extensive scope of the ETS, the burden on employers, and its encroachment into the lives of workers. The Court confirmed OSHA’s authority to regulate workplace safety, but stated it does not have the power to regulate “public health” more broadly – and it characterized the ETS as an attempt to do exactly that. Notably, the Court left the door open for OSHA to regulate occupation-specific risks related to COVID-19, stating “where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible.”

In an additional opinion issued today, the Supreme Court addressed two cases regarding the vaccination mandate imposed by the Centers for Medicare and Medicaid. Finding the government’s position regarding the necessity of the CMS mandate more persuasive, and the scope of the mandate more limited and narrowly tailored to address the risks associated with health care workplaces and the protection of patients, the Supreme Court issued a stay of injunctions previously imposed by two District Courts. Accordingly, the CMS vaccination mandate remains valid and health care workers in federally regulated facilities to which the CMS applies must be vaccinated unless they qualify for an exemption.

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