UPDATED 1/25/2022: In response to the U.S. Supreme Court’s January 13, 2022 opinion on the OSHA ETS, OSHA is withdrawing the ETS effective as of January 26, 2022. This means that the ETS will not be an enforceable ETS as of January 26, 2022 and private employers with 100 or more employees are not required to ensure their workers are vaccinated or undergo weekly COVID-19 testing under federal law (unless they receive federal funding from Medicare or Medicaid). It is important to note that certain employers may still be subject to similar state laws that require vaccination or testing.
On January 13, 2022, the United States Supreme Court released its opinions regarding the continued challenges to the Occupational Safety and Health Administration (OSHA) emergency temporary standards (ETS). Of note, the Court re-implemented the stay on the requirement that private employers with 100 or more employees require employees be vaccinated (or mandate weekly testing and masking). Further, the Court upheld the Centers for Medicare & Medicaid Services’ (CMS) Interim Final Rule which requires facilities that receive Medicare and Medicaid funding to mandate employees be vaccinated, unless they are eligible for a religious or medical exemption.
- Employers with 100 or more employees are not currently required to comply with the OSHA ETS for COVID-19 vaccines and testing.
- The vaccine mandate impacting facilities that receive Medicaid and Medicare funding is upheld, requiring such facilities to make sure their employees are vaccinated against COVID-19 (unless a religious or medical exemption applies).
Background and Recent Updates
Timeline overview of events:
- November 5, 2021: OSHA’s ETS on the Biden Administration’s vaccine mandate were published. The vaccine mandate, previously announced as a part of the administration’s COVID-19 Action Plan, requires private employers with 100 or more employees to ensure their workers are vaccinated or tested for COVID-19 on a weekly basis.
- November 12, 2021: The U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s ETS, ordering OSHA to “take no steps to implement or enforce” the ETS “until further court order.” As a result, OSHA suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.
- December 17, 2021: The U.S. Court of Appeals for the 6th Circuit dissolved the stay of the OSHA ETS. As a result, OSHA announced that it would move forward with the ETS implementation. At that time, OSHA indicated that it would not issue citations for noncompliance with the ETS if covered employers complied with the ETS (except the COVID-19 testing requirement) by January 10, 2022 and with the weekly COVID-19 testing requirement for unvaccinated employees by February 9, 2022.
- January 13, 2022: The U.S. Supreme Court issued its highly anticipated opinion on this matter, now re-implementing the stay of the requirement that private employers with 100 or more employees require employees be vaccinated, or mandate weekly testing and masking. In addition, the Court upheld CMS’s Interim Final Rule which requires facilities that receive Medicare and Medicaid funding to mandate employees to be vaccinated, unless they are eligible for a religious or medical exemption.
While the future of the ETS is still uncertain, the Court indicated in its opinion that the challengers to the mandate are likely to succeed on the merits of their case, noting that OSHA does not have the authority to impose such a broad mandate. The Court explains that OSHA’s authority is limited to occupational hazards (i.e., work-related dangers), and its authority does not extend to regulating workplaces with “broad public health measures.” It further expresses that COVID-19 is a risk that occurs in many workplaces, but it is not an occupational hazard in most.
In contrast, the Court upheld CMS’s Interim Final Rule requiring facilities that receive Medicare and Medicaid funding to mandate employees to be vaccinated (unless they are eligible for a religious or medical exemption). The Court explains that such mandate is within CMS’s authority to impose conditions on entities receiving Medicare and Medicaid funding in the “interest of the health and safety of individuals who are furnished services.” See CMS’s FAQs for additional information on this requirement.
With the stay in effect, employers with 100+ employees (who are not subject to CMS’s Interim Final Rule) currently are not required to implement a vaccine mandate or testing and masking requirements. The stay is in place until the case is fully heard and decided. Employers who are subject to the CMS Interim Final Rule, however, must comply with the CMS vaccine mandate.
We will continue to monitor and communicate updates accordingly. These are dynamic issues and employers are encouraged to consult with counsel to determine their continued approach to the ETS and CMS Interim Final Rule, as applicable.
- U.S. Supreme Court Opinion (regarding ETS)
- U.S. Supreme Court Opinion (regarding CMS Interim Final Rule)
- OSHA Materials:
- OSHA Interim Final Rule: Withdraw of ETS
- OSHA Statement on the Status of the COVID-19 Vaccination and Testing ETS
- COVID-19 Vaccination and Testing: Emergency Temporary Standard
- COVID-19 Vaccination and Testing ETS FAQs
- COVID-19 Vaccination and Testing ETS Summary
- COVID-19 Vaccination and Testing ETS Fact Sheet
- OSHA Sample Policies (located under “Implementation”)
- OSHA Fact Sheet on Prohibitions on Retaliation and Discrimination
- OSHA Fact Sheet on Criminal Penalties for Falsifying Statements or Documents
- OSHA Fact Sheet on Reporting Work-Related COVID-19 Deaths and Hospitalizations
- CMS Materials:
- Sequoia Forewords: