Supreme Court Stays OSHA Vaccine Mandate Pending Appeal – What Does This Mean For Employers?
January 14, 2022
By: Colin A. Walker
The Supreme Court has Stayed the Emergency Temporary Standards (ETS) for COVID vaccinations issued by Occupational Health and Safety (OSHA) in November 2021. This mean that if you are an employer with 100 or more employees, you are no longer required by the government to mandate your employees to be vaccinated, test negative, or to wear masks, unless your organization is comprised of healthcare workers who provide services for federally-funded programs such as Medicare or Medicaid.
The Background: On November 5, 2021, OSHA issued its ETS for COVID vaccinations. The ETS covers employers with 100 or more employees and requires employees to be fully vaccinated or to test negative weekly and to wear masks. There are exemptions for religious practices and disabilities.
Numerous lawsuits challenging the mandate were filed and several federal courts held it to be unlawful. The Biden Administration appealed and, in December, a divided the Sixth Circuit Court of Appeals allowed the mandate to go forward pending its decision on the consolidated appeals. The parties challenging the mandate asked the United States Supreme Court to stay the mandate pending their appeals.
On Thursday, January 13, 2022, the Supreme Court issued an order staying the mandate pending the Sixth Circuit’s decision on the merits of the appeal. It allowed a vaccine mandate for healthcare workers in federally-funded programs to continue.
The Supreme Court held, “Applicants are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate,” explaining “The [Occupational Health and Safety] Act empowers the Secretary to set workplace safety standards, not broad public health measures.” “Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most.” Rejecting arguments in the dissent, written by Justice Sotomayor, that the mandate is like many other workplace safety regulations issued by OSHA, the majority opined, “a vaccine mandate is strikingly unlike the workplace regulations that OSHA has typically imposed. A vaccination, after all, ‘cannot be undone at the end of the workday.’” The Court concluded, “OSHA’s indiscriminate approach fails to account for this crucial distinction— between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an ‘occupational safety or health standard.’”
The decision focuses on the statutory authority of federal agencies and does not appear to affect the right of private employers to require their employees to be vaccinated. Numerous courts have denied challenges to a private employer’s ability to require vaccines.
The Court allowed the healthcare vaccine mandate to continue, holding that Congress had clearly authorized the Secretary of Health and Human Services to impose such requirements on healthcare workers who provide services to federally-funded programs such as Medicare and Medicaid. The Court explained, “The Secretary of Health and Human Services determined that a COVID–19 vaccine mandate will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients.” He accordingly concluded that a vaccine mandate is ‘necessary to promote and protect patient health and safety’ in the face of the ongoing pandemic. Therefore, the Court concluded that the Secretary’s action was authorized by law.
The Court’s stay is effective pending a final decision of the Sixth Circuit and any petitions for review by the Supreme Court.