On Thursday, January 13, 2022, the U.S. Supreme Court blocked the Occupational Safety and Health Administration (OSHA)’s COVID-19 Vaccination Emergency Temporary Standard (ETS), the "vaccine-or-test" mandate for private employers with 100 or more employees. The vote was 6 to 3, with the liberal justices in dissent. However, that same day, in a simultaneously released but separate opinion, the Court upheld the vaccination rule from the Centers for Medicare and Medicaid Services (CMS). That rule requires vaccination of all health care workers at CMS-covered facilities, with narrow exceptions. There, the vote was 5-4, with Chief Justice John Roberts and Justice Brett Kavanaugh joining the liberal justices to form a majority.
OSHA’s Emergency Temporary Standard – the Vaccine-or-Test Mandate for Large Employers
The ETS would have required all employers of 100 or more employees to: (1) implement a mandatory COVID-19 vaccination policy or a policy requiring employees to either get vaccinated or choose to undergo regular testing and wear a mask; (2) determine the vaccination status of each employee and maintain records regarding the employee's vaccination status; and (3) provide certain COVID-19 vaccination support, such as paid time to get vaccinated and recover from vaccination side effects, among other requirements.
ETS’s Journey Through the Courts
Like a bad high school relationship, the courts have had an on-again, off-again affair with the ETS, breaking up and getting back together three times in the last two months. OSHA issued the ETS on November 5, 2021, and almost immediately, several different state coalitions filed petitions in several U.S. Circuit Courts. When the ETS was just one day old, on November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit issued a temporary stay, which it renewed on November 12. After the Sixth Circuit won the lottery to hear the consolidated cases, on December 17, 2021, it reversed the Fifth Circuit’s stay, allowing the ETS to proceed. Almost immediately, petitions were filed with the U.S. Supreme Court seeking to block the ETS. Oral arguments on the ETS and the CMS Rule were held on Friday, January 7, 2022.
The Court’s Reasoning
The U.S. Supreme Court blocked the ETS, reasoning that OSHA exceeded the authority granted to it under the Occupational Safety and Health Act. That Act, the Court explained, "empowers the Secretary to set workplace safety standards, not broad public health measures." The Court’s majority opinion begins by reciting the legal standard OSHA must meet in order to issue emergency temporary standards under the Act. That standard is met when the Secretary can show (1) "that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards," and (2) that the "emergency standard is necessary to protect employees from such
danger." 29 U. S. C. §655(c)(1). The Court’s majority never revisited the standard after citing it.
Instead, the majority reasoned that the ETS doesn’t address an occupational hazard, it addresses a general hazard that people face in every aspect of their lives, "at home, in schools, during sporting events, and everywhere else that people gather." Id., at 7. The majority explained that "[t]hat kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional
authorization." Id.
Responding to the majority’s argument that COVID-19 wasn’t an "occupational" threat, the dissent pointed out that OSHA frequently regulates workplace hazards that are also hazards existing in everyday life, outside the workplace. It noted that, for example, "OSHA has issued, and applied to nearly all workplaces, rules combating risks of fire, faulty electrical installations, and inadequate emergency exits—even though the dangers prevented by those rules arise not only in workplaces but in many physical facilities (e.g., stadiums, schools, hotels, even homes)…. Similarly, OSHA has regulated to reduce risks from excessive noise and unsafe drinking water—again, risks hardly confined to the
workplace." Dissent, at 8 (citations to specific regulations omitted).
In response to this point, the majority suggested that, were the ETS more finely-tuned (less of a "blunt instrument"), and more industry-specific, the Court may have ruled differently. The majority explained:
That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face. 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.” 29 U. S. C. §655(b) (emphasis added).
Opinion, at 7.
Is the ETS Actually Dead Now?
No. The U.S. Supreme Court’s ruling is a temporary stay, pending the Sixth Circuit’s review of the merits of the challenges to the ETS and the exhaustion of any appeals to the Supreme Court. Thus, the final word has not been spoken as to OSHA’s proposed ETS, but we have a good sense of how the Supreme Court may ultimately rule given this decision.
However, this ruling does mean that employers are not subject to the deadlines that were in place after the Sixth Circuit’s review. For the moment at least, compliance with ETS isn’t required at all.
It is important to note that currently employers in Ohio still have the right to implement policies requiring full vaccination of all employees or "vax or test" options (consistent with OSHA’s rule). Employers, however, need to be mindful of the relevant laws of other states in which they have workplaces, as some have enacted or may enact restrictions on an employer’s right to insist upon vaccination and/or testing. The Court’s stay of the ETS simply means covered employers are not being required to implement those policies. Many employers may still determine that such policies will best serve their business interests and the well-being of their employees.
The Court Upheld the CMS Vaccine Mandate for Workers in Facilities that Participate in Medicare and Medicaid
While it issued a stay on the ETS for large private employers, the Court upheld the vaccine mandate for health care workers whose employers participate in Medicare and Medicaid. That rule was issued on November 5, 2021 by the Secretary of Health and Human Services. It was an interim final rule amending the existing conditions of participation in Medicare and Medicaid to add the requirement that facilities mandate vaccination of their staff against COVID–19, with narrow exceptions. 86 Fed. Reg. 61561, 61616–61627.
The majority noted that Congress has authorized the Secretary to impose conditions 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." Opinion, at 5 (citing 42 U. S. C. §1395x(e)(9)). The Court took notice that “COVID–19 is a highly contagious, dangerous, and—especially for Medicare and Medicaid patients—deadly disease,” and that the Secretary had reasonably determined that a COVID–19 vaccine mandate would “substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients.” Id. (citing 86 Fed. Reg.
61557–61558). Therefore, the Secretary "concluded that a vaccine mandate is ‘necessary to promote and protect patient health and safety’ in the face of the ongoing pandemic." Id. Accordingly, the majority held that, "The rule thus fits neatly within the language of the statute" and should be upheld. Id.
For health care employers receiving Medicare or Medicaid funding, the Court’s ruling means that the CMS’s vaccine mandate will proceed, and those employers should be prepared to implement their worker vaccination policies.
We will keep you updated as to any further developments. Our Labor and Employment practice group attorneys are available to assist with COVID-19 vaccination, testing, and other policies and related issues arising in your workplaces.
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