Supreme Court Blocks Enforcement of OSHA “Vax Or Test” Emergency Temporary Standard

January 14, 2022

Yesterday, on January 13, 2022, the United States Supreme Court upheld the stay of the Occupational Health and Safety Administration’s (“OSHA”) Emergency Temporary Standard requiring employers of 100 or more employees (“Large Employers”) to implement a mandatory COVID-19 vaccination policy, or in the alternative, a weekly COVID-19 testing requirement (“Vax or Test ETS”). By upholding the stay, the Supreme Court effectively blocked OSHA from further enforcing the Vax or Test ETS, pending further litigation and a determination on the merits as to whether OSHA has the authority to promulgate the standard. As a result, Large Employers are temporarily relieved from implementing the requirements of the federal Vax or Test ETS. However, employers may continue to be subject to COVID-19 vaccination or testing requirements under state and/or local law and may implement their own vaccination or testing policies subject to restrictions of applicable state or local law. In a separate opinion, the Court issued a decision upholding the vaccine mandate issued by the Centers for Medicare and Medicaid Services, meaning that employers who are providers of healthcare services under Medicare and Medicaid must ensure that covered workers are vaccinated against COVID-19.

The initial stay of enforcement of OSHA’s Vax or Test ETS originated in the Fifth Circuit while the Circuit was considering a petition for review of OSHA’s authority to promulgate the Vax or Test ETS. After similar petitions filed in each of the federal Courts of Appeals were consolidated in the Sixth Circuit, a three-judge panel dissolved the stay. The issue of the stay then went up to the Supreme Court, which in turn consolidated two applications requesting that the stay be reinstated. The Supreme Court heard arguments on the stay on Friday, January 7, and issued a decision on January 13, 2022.

Noting that Congress did not empower OSHA to “set . . . broad public health measures,” the Supreme Court’s per curium opinion concluded that because the Vax or Test ETS would require 84 million American to be vaccinated or undergo regular testing, the ETS goes beyond OSHA’s charge from Congress to regulate occupational-specific risk. The stay of the Vax of Test ETS will remain in place until either (1) the Sixth Circuit issues its decision on the merits as to whether OSHA has authority to promulgate the Vax or Test ETS, or (2) the Supreme Court subsequently (i) denies a writ of certiorari or (ii) accepts a writ of certiorari and issues a judgment.

Employers should continue to consider best practices for workplace safety with respect to COVID-19. In a statement from the U.S. Secretary of Labor Marty Walsh released on Thursday, January 13, 2022, the Secretary continued to “urge all employers to require workers to get vaccinated or tested weekly to most effectively fight this deadly virus in the workplace,” noting that “[e]mployers are responsible for the safety of their workers on the job,” and that “OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program and General Duty Clause.”

After the Sixth Circuit dissolved the initial stay of the Vax or Test ETS, OSHA had announced that it would begin enforcement of the ETS on Monday, January 10. Thus, while awaiting the Supreme Court’s decision on the stay between Monday and Thursday, many Large Employers were faced with the choice of either complying with the Vax or Test ETS’s requirements even though the ETS could be further stayed and ultimately held unenforceable, or risking fines and other enforcement action from OSHA for failing to comply. The Supreme Court’s decision at least temporarily clarifies that Large Employers have no obligation to implement a COVID-19 vaccination or testing policy pursuant to the federal Vax or Test ETS’s requirements.

However, although Large Employers are temporarily relieved from having to implement the requirements of the federal Vax or Test ETS, there may be state or local laws or regulations requiring employers to implement a mandatory COVID-19 vaccination and/or testing requirement of some or all workers. For example, as we described in our December 15 alert, New York City is requiring private sector businesses whose workers work in-person or interact with the public in the course of business to obtain and verify workers’ proof of vaccination, among other requirements. These private sector businesses had until December 27, 2021 to obtain each in-person worker’s proof of having received at least one dose of a COVID-19 vaccine or a request for a reasonable accommodation from the requirement. Private sector businesses have an additional forty-five days to obtain the in-person workers’ proof of having received a second dose where applicable. Unlike the federal Vax or Test ETS, NYC’s mandate does not allow for a weekly testing alternative to its mandatory vaccination policy, except as a reasonable accommodation for covered reasons. Employers in other jurisdictions should confirm whether they are subject to state and local laws or regulations requiring COVID-19-vaccination and/or testing of workers and ensure that they are in compliance.

The U.S. Supreme Court’s decision on the consolidated applications for stays of OSHA’s Vax or Test ETS is available here:

The U.S. Secretary of Labor’s Statement on the Supreme Court’s ruling can is available here:

The U.S. Department of Labor’s Direction on the COVID-19 National Emphasis Program is available here:

Guidance on NYC’s Private Workplace Vaccination Requirement is available here:

Please contact a member of Herrick’s Employment Group with any questions.

Carol M. Goodman at +1 212 592 1465 or [email protected]
Meaghan Roe at +1 212 592 1632 or [email protected]

© 2022 Herrick, Feinstein LLP. This alert is provided by Herrick, Feinstein LLP to keep its clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The information is not intended as legal advice or legal opinion and should not be construed as such.