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01.13.22   |   COVID-19, Insights

OSHA’S VACCINE MANDATE IS STAYED . . . . ONCE AGAIN! (While the CMS Vaccine Mandate Goes Into Effect . . . For Now!)

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The Supreme Court on Thursday, January 13, dealt a major blow to the Occupational Safety and Health Administration’s (“OSHA”) Emergency Temporary Standard (“ETS”), commonly known as OSHA’s Vaccine or Testing Mandate.

In a 6 to 3 decision, with Justices Breyer, Sotomayor and Kagan dissenting, the Court found that the businesses and states opposing OSHA’s ETS were likely to succeed in the Sixth Circuit, and therefore granted their applications to temporarily stay enforcement of OSHA’s ETS while the case is returned to the lower court.

This means businesses with 100 or more employees, which were subject to the OSHA Vaccine or Testing Mandate, need not implement the mandate at the present time.  OSHA’s enforcement, which began on January 10, 2022, is on hold.  The future viability of the OSHA Vaccine or Testing Mandate is very much in doubt.

In its opinion, the Supreme Court found that OSHA likely exceeded its authority to ensure occupational safety when it issued the ETS. The Court reasoned that while COVID-19 does present a risk in the workplace, it presents an equal risk outside the workplace and is, therefore, more of a “universal” risk rather than an “occupational” hazard in most work settings. The Court stated, “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.”

Conversely, in a separate 5 to 4 opinion, in which Justices Roberts and Kavanaugh joined Justices Breyer, Sotomayor and Kagan, the Supreme Court permitted the Centers for Medicare & Medicaid Services’ (“CMS”) Vaccine Mandate to go forward for most health care facilities participating in the Medicare and Medicaid programs. Unlike the OSHA ETS, the Court found that Congress likely did authorize CMS to impose such conditions as a condition of those facilities’ receipt of federal funds. The Court stated, “After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical progression: first, do no harm.”

So, the OSHA Vaccine and Testing Mandate is stayed, once again, while CMS’s Vaccine Mandate goes into effect. While it is now up to the lower courts to decide the ultimate fate of these mandates—whether it is going back into effect, remaining in effect or being struck down permanently—the Supreme Court has sent a strong signal that even if the lower courts uphold OSHA’s ETS and strike down CMS’s Vaccine Mandate, the Supreme Court is likely to reverse those decisions and send OSHA’s ETS packing for good while permitting the healthcare mandate to remain in effect.

While large employers can breathe a sigh of relief as enforcement of OSHA’s ETS seems unlikely (at least for the moment), the Supreme Court did leave a small window open for OSHA to take a second crack at a new mandate if limited to specific occupations where COVID-19 poses a “special danger” because of the particular features of an employee’s job or workplace. But whether OSHA will try to create a new, more targeted rule remains to be seen.

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