Since November, employers have been training for what is shaping up to be a race to nowhere by scrambling to comply with the White House’s Emergency Temporary Standard (ETS) regarding vaccine requirements in the workplace. The ETS required all private sector businesses with more than 100 employees to either ensure their employees are fully vaccinated against COVID-19 or have unvaccinated workers test weekly for COVID-19 and mask while at work. The ETS, had it gone into effect this month, would have impacted 84 million Americans.
The ETS was challenged by a group of businesses and conservative states who argued that OSHA lacked the authority to require employers to mandate a “vaccine or test” policy. Since its rollout, the ETS has volleyed between being blocked to being reinstated several times before the Supreme Court stepped in to make a final adjudication, which it did on Thursday, January 13, 2022. In determining that the stay on the ETS should be reinstituted, the Court noted that OSHA’s actions went beyond its permitted parameters and that its administrative purpose is ensuring workplace safety, not issuing regulations affecting overall public health.
Employers who have already implemented policies pursuant to the ETS (which contained deadlines as early as January 10, 2022) may elect to keep their policies in effect. Even prior to the ETS, many private employers have elected to implement vaccine mandates. However, the Supreme Court ruling now allows employers greater agency in crafting their COVID policies to fit their particular workforce.
The Supreme Court has not swept away all vaccination mandates in all workplaces. The Court also ruled in a companion case that a separate regulation (enforced by the Centers for Medicare and Medicaid Services, or CMS) requiring vaccination for health care workers who treat Medicare and Medicaid patients can be enforced. If the facilities in which healthcare workers receive federal funds through these programs, those facilities are required to mandate vaccinations.
The third Biden administration vaccine mandate, the one imposed on federal contractors and subcontractors, remains in litigation limbo. It will not be enforced until legal challenges work their way through the federal circuit courts (appeals are ongoing in the Fifth, Sixth, and Eleventh Circuits).The nationwide stay on the federal contractor vaccine mandate remains in effect at this time.
This ruling allows employers greater flexibility in determining what kinds of vaccine/testing/masking policies they will implement, subject, of course, to state and local mandates. As always, if you have questions or would like samples of policies we have prepared in response to these ever-changing requirements or would like advice on what type of policy best mirrors your company’s philosophy and practical ability, please reach out to us.
 The Supreme Court ruled only on the issue of the stay, not the merits of the case. The case now returns to the Sixth Circuit for that decision. The ETS is set to expire in May, and it remains unclear as to whether it will be subject to future enforcement or be permanently left in the dust.