Today, January 13, 2022, a split U.S. Supreme Court blocked the COVID-19 vaccination or testing rule, which was originally published by the Occupational Safety and Health Administration (OSHA) on November 5, 2021. This means employers no longer have to comply with this rule at this time. Employers could still choose to implement a vaccination requirement that considers medical or religious accommodation requests, but at this point, they would not currently be able to cite to OSHA’s Emergency Temporary Standard as the reason for doing so. Additionally, employers should also be aware of any state-specific rules requiring or blocking employee vaccination.
In our previous update, we discussed the Sixth Circuit’s decision to allow OSHA’s mandate to take effect, which would have required employees of large employers to receive the COVID-19 vaccination or be subject to weekly COVID-19 testing. This would have affected over 80 million workers across the country.
However, in today’s decision, the Supreme Court stayed OSHA’s rule, blocking the mandate until the underlying Sixth Circuit court case is determined. In its decision, the Supreme Court explained that the Occupational Safety and Health Act empowers the implementation of “workplace safety standards, [but] not broad public health measures,” and it opined that although COVID-19 is a risk occurring in many workplaces, it is not a hazard occurring solely in the workplace. The Court left open the possibility that OSHA could implement targeted regulations where COVID-19 poses a special danger because of the particular features of an employee’s job or workplace.
Indeed, the Supreme Court did permit a similar rule from the Centers for Medicare and Medicaid Services (CMS) to move forward. This rule requires all staff in nursing homes and other healthcare facilities participating in the Medicare and Medicaid programs to be vaccinated, unless a medical or religious exemption applies.
A third vaccination mandate, which would require employees of federal contractors and subcontractors to be vaccinated, has been stayed by several courts, including a Georgia federal court, which halted the mandate nationwide in December 2021. The Justice Department has appealed the stay on this mandate in several venues, although the rule currently remains on hold pending further court developments.
Harter Secrest & Emery’s Labor and Employment attorneys are here to answer any questions you may have regarding the ruling. Please contact any Labor and Employment team member at 585.232.6500 or 716.853.1616.
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