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SCOTUS Rules Against the OSHA COVID-19 Vaccine/Testing Rule…So Now What?

Christopher Wood, CPP  

Christopher Wood, CPP  

The Supreme Court ruled to block the federal agency’s rule to mandate COVID-19 vaccines or testing for many workers. What’s next for employers?

SCOTUS blocks federal rule requiring COVID-19 vaccine and/or testing

On January 13, 2022, U.S. Supreme Court (SCOTUS) ruled to block a federal rule that was to require many employers to impose coronavirus (COVID-19) vaccine and/or testing requirements on their workers or face penalties for noncompliance. 

Background.

On November 5, 2021, the U.S. Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) rule that mandated employers with 100 or more employees to develop, implement and enforce a COVID-19 vaccine and testing plan.  

The ETS was to require covered employers to determine the vaccine status of each employee, obtain acceptable proof of vaccination from vaccinated employees, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status. 

The original deadlines for implementation of OSHA’s ETS rule for vaccination and testing were December 6, 2021 and January 4, 2022, respectively.   

Legal challenges.

Shortly after OSHA announced its rule, several legal challenges were brought against it.  On November 12, 2021, the Fifth Circuit Court of Appeals granted a motion to stay OSHA’s ETS rule. OSHA announced that it was suspending activities related to the implementation and enforcement of its ETS rule in the wake of the ruling. 

On November 16, 2021, the legal challenges against OSHA’s ETS rule were consolidated in the Sixth Circuit Court of Appeals. The Sixth Circuit was randomly chosen to hear the combined legal challenges against OSHA’s ETS. 

Stay dissolved. 

On December 17, 2021, the Sixth Circuit ruled to dissolve the Fifth Circuit’s stay of OSHA’s ETS rule.  It was a two-to-one decision from a three-judge panel. The Sixth Circuit said that OSHA did have the statutory authority to implement a national vaccine-or-test mandate and pointed to the agency’s authority to protect workers against infectious diseases. The Sixth Circuit did not address how its decision was to impact the timing of OSHA’s ETS rule deadlines.    

OSHA extends deadlines. 

Following the Sixth Circuit’s ruling, OSHA delayed the implementation of the workplace health standard until January 10, 2022 for employers to be in compliance with the ETS non-testing standard and until February 9, 2022 to be in compliance with the testing standard. The deadline was previously January 4, 2022.  

SCOTUS hears/rules on legal challenges. 

On January 7, 2022, SCOTUS heard oral arguments on OSHA’s ETS rule on COVID-19 vaccines and testing. The consolidated cases are referred to as Nat. Fed’n of Indep. Bus. v. Dept. of Labor (21A244). The case is listed on SCOTUS’s website calendar. 

On January 13, 2022, it was announced that SCOTUS ruled six to three in the matter of Nat. Fed’n of Indep. Bus. v. Dept. of Labor (21A244). The Court’s decision blocks the Sixth Circuit’s December 17, 2021 ruling that had allowed the mandate to take effect. As a result,  OSHA’s ETS COVID-19 vaccine and testing requirements will not be implemented and employers with 100 or more employees do not need to comply.  

The Court said that OSHA’s rule was not an ordinary use of federal power. ”It is instead a significant encroachment on the lives – and health – of a vast number of employees,” the Court said. 

Dissenting opinion.

Justice Stephen Breyer wrote the dissenting opinion that said the decision “stymies the federal government’s ability to counter the unparalleled threat that COVID-19 poses to our nation’s workers.” 

Labor Secretary urges vaccines/testing. 

Following SCOTUS’s ruling on OSHA’s ETS rule, the U.S. Secretary of Labor issued a statement where he urged all employers to require workers to get vaccinated or tested weekly. He added that “employers are responsible for the safety of their workers on the job and OSHA has comprehensive COVID-19 guidance to help them uphold their obligation.”  That guidance is located here. 

Some employers already require vaccines. 

Employers such as American Express, Amtrak, Cisco, Citigroup, CVS Health, Deloitte, Delta Airlines, DoorDash, Facebook, General Electric, Google, Lyft, McDonald’s, Netflix, The New York Times, Twitter, Tyson Foods, Uber, Walgreens, Walmart, The Washington Post, and many more already have some form of COVID-19 vaccination and/or testing requirement in place for certain employees.  SCOTUS’s ruling has no impact on these and other employers requiring an employee to have a COVID-19 vaccine and/or test.  

So, what now for employers? 

SCOTUS’s ruling stops the federal government from imposing its ETS rule for COVID-19 vaccines and testing on the covered employers. However, employers can still implement and enforce COVID-19 vaccine and testing requirements. According to the Equal Employment Opportunity Commission (EEOC), federal equal employment opportunity laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19 as long as it is not discriminatory against specific groups of people.  

U.S. Department of Health and Human Services Secretary Xavier Becerra also affirmed that employers can still require COVID-19 vaccines.  Becerra wrote that many employers have already begun implementing vaccine requirements and encouraged more to do so.  

President Biden also urged employers to implement COVDI-19 vaccines and testing requirements after SCOTUS’s ruling. Biden noted that one-third of Fortune 100  companies have such plans in place and also that U.S. States could take action for COVID-19 vaccine and testing mandates.  

Given that OSHA’s deadline for implementation of the workplace health standard was January 10, 2022, many would-be-covered employers may have already implemented a COVID-19 vaccine and testing plan.  At this point, some employers may decide to carry on with the plan and continue to follow OSHA’s guidance.  Others may not. There will be no penalties imposed at the federal level for any employer that is not in compliance with OSHA’s ETS rule following SCOTUS’s decision. 

SCOTUS rules in favor of other COVID-19 vaccine mandate. 

On January 13, 2022, SCOTUS ruled in favor of the Centers for Medicare and Medicaid Services (CMS) emergency regulations for COVID-19 vaccine requirements. The CMS issued the regulations on November 5, 2021. These regulations also faced several legal challenges and followed a similar path to the Supreme Court. 

The rule requires the COVID-19 vaccination of most employees of most employers who receive Medicare or Medicaid funds, as well as certain non-employees who might come on site. 

SCOTUS ruled five to four in favor of the rule. Such employees must be vaccinated by the end of February 2022 under the mandate. 

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