January 14, 2022


On January 13, 2022, the U.S. Supreme Court issued a stay against the OSHA Emergency Temporary Standard (ETS) for large, private employers.  Then in a second opinion, it refused to stop the Interim Final Rule (IFR) issued by the Centers for Medicare and Medicaid Services (CMS) requiring vaccination of many healthcare workers.  

The OSHA ETS required private employers with 100 or more employees to mandate COVID-19 vaccination of their employees, or alternatively to require that they undergo periodic testing.  Originally issued on November 5, 2021, the ETS was blocked by the Fifth Circuit Court of Appeals pending consolidation of multiple actions filed against it.  Later, on December 17, 2021, the Sixth Circuit dissolved the stay and reinstated enforcement of the ETS.  Arguments on the matter were then heard before the U.S. Supreme Court on January 7, 2022.  That Court has now issued its ruling, which once again, blocks enforcement of the ETS.

The Court concluded that OSHA exceeded its statutory authority in issuing the ETS, which it noted was “a significant encroachment into the lives – and health – of a vast number of employees.”  The Occupational Safety and Health Act permits OSHA to set workplace safety standards, but not “broad public health measures.”  COVID-19 represents a “universal risk” that spreads everywhere that people gather.  While this does occur in many workplaces, it is not an “occupational hazard” in most, per the Court.  “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.”  While more targeted regulations might be permissible (such as regulating researchers who work with the virus, for example), OSHA’s “indiscriminate approach” failed to account for the distinction between “occupational risk” and “risk more generally.”  As such, it took on the “character of a public health measure, rather than an occupational safety or health standard.”

In a separate opinion, the Supreme Court allowed the CMS IFR for vaccination of health care workers to stand.  That rule, also originally issued on November 5, 2021, required that facilities participating in Medicare and Medicaid mandate that their employees become vaccinated against COVID-19.  The Court concluded both that this rule fit “neatly into the language of the statute” governing CMS, and that “[v]accination requirements are a common feature of the provision of healthcare in America.” 

Based upon these opinions, OSHA will now be prevented from enforcing the ETS in any capacity against large private employers.  CMS, however, may still enforce its vaccination rule for healthcare workers.

If you have any questions regarding the elimination of the stay, the underlying OSHA ETS, or the CMS IFR, please contact our Employment Law Group at 1-888-488-2638 or email at EmploymentLaw@c-wlaw.com.