Yesterday the Supreme Court issued a stay of OSHA’s vaccinate-or-test
emergency temporary standard (ETS), blocking the ETS from taking effect. While the Court issued a stay of the ETS, it allowed the vaccine mandate for health care workers regulated by the Centers for Medicare & Medicaid Services (CMS) to take effect. The CMS vaccine policy that was issued in November 2021 requires workers in Medicare-/Medicaid-participating health care settings to receive COVID-19 vaccinations, with limited exceptions.
In granting a stay of the ETS, the Court found that those challenging the ETS are likely to succeed on the merits of their arguments—namely, that OSHA lacks authority to impose the mandate, which if upheld would have applied to more than 80 million workers across the country. The Court took particular issue with the ETS purporting to regulate what the majority views as “hazards of daily life” and “public health” issues, rather than dangers associated with the workplace.
The Court did, however, acknowledge that OSHA may have authority to regulate occupation-specific risks related to COVID-19, leaving the door open for OSHA to issue additional COVID-19-related regulations in the future.
Three justices dissented (Elena Kagan, Sonia Sotomayor and Stephen Breyer).
To be clear, the Court’s decision yesterday is not a final ruling on the merits of the ETS. The Court granted the application to stay enforcement of the ETS pending disposition of the petitions for review in the U.S. Court of Appeals for the Sixth Circuit and any petitions for writs of certiorari. However, the issuance of a stay is a telling indicator of the Court’s likely view of the merits, and it appears unlikely that the ETS will ultimately stand.
Based on yesterday's ruling, large employers are currently relieved of the federal obligation to ensure that their workers are vaccinated or tested weekly before entering the workplace. Now that the ETS is off the table, state and local governments may step in with their own mandates.
Manatt is closely monitoring developments related to COVID-19 vaccination, testing and face-covering requirements and will continue to provide information and insights as they become available.
