Earlier this afternoon, the U.S. Supreme Court issued a stay blocking the Occupational Health and Safety Administration (“OSHA”) from enforcing its “vaccine or test” mandate previously imposed on businesses with 100 or more employees.  This case will return to the Sixth Circuit Court of Appeals for the underlying merits to be litigated.

The stay means that employers are not required to comply with the “vaccine or test” mandate at this time.  This could change, however, as the underlying merits are litigated.

The Supreme Court’s ruling does not impact an employer’s or a state’s ability to impose safety rules and regulations relating to COVID-19, including requiring employees be vaccinated (with sufficient religious and medical exemptions) or to be tested weekly.

The Supreme Court did rule, however, that similar requirements under the Centers for Medicare and Medicaid Services’ (CMS) vaccine rule for certain healthcare employers with medical facilities that take Medicare or Medicaid payments were permitted.

Background on the ETS litigation.

On November 5, 2021, OSHA published an Emergency Temporary Standard (“ETS”) mandating that employers with 100 or more employees either require employees be vaccinated or submit to weekly COVID-19 testing, among other things.  Shortly thereafter, the Fifth Circuit Court of Appeals stayed the ETS.

As lawsuits were filed in a multitude of states, the various cases were consolidated and heard by the Sixth Circuit, which was selected by lottery.  On December 17, 2021, the Sixth Circuit ruled that the Fifth Circuit’s stay was not justified and dissolved the stay. Following the dissolution, OSHA set new compliance dates for the ETS mandate (February 9, 2022 for vaccine or testing requirements and January 10, 2022 for all other components), while opponents of the Sixth Circuit’s decision appealed to the Supreme Court.

What happened at the Supreme Court?

On January 7, 2022, the Supreme Court heard arguments on whether or not a stay of the ETS mandate should be reinstated.  This afternoon, the Supreme Court found that the Sixth Circuit improperly dissolved the stay and overturned its decision.

As a result, OSHA is again blocked from enforcing its “vaccine or test” mandate pending resolution on the underlying legal issue – i.e., whether OSHA had the legal authority to impose such a mandate.

What happens now?

This fight isn’t over yet.  The argument on whether OSHA had the authority to implement the ETS still needs to be resolved.  This will likely happen at the Sixth Circuit or possibly at the Supreme Court.

This information is for educational purposes only to provide general information and a general understanding of the law. It does not constitute legal advice and does not establish any attorney-client relationship.