UPDATE: Supreme Court Stays OSHA Vaccination and Testing Emergency Temporary Standard

On January 13, 2022, the Supreme Court of the United States blocked enforcement of the OSHA Vaccination and Testing Emergency Temporary Standard (“ETS”). The stay prevents OSHA from enforcing the ETS while challenges to the regulations are litigated in the Sixth Circuit. 

The Sixth Circuit previously allowed OSHA to begin enforcing the ETS, which requires covered employers to establish, implement, and enforce written mandatory vaccination or testing policies. The divided Sixth Circuit panel found that OSHA was authorized to address “grave dangers” to workers and that the challengers did not establish a likelihood of success on the merits to support a stay.

The Supreme Court disagreed, finding that OSHA is empowered only to set workplace safety standards, not enforce broad public health measures. The Supreme Court stay will remain in place until the litigation of challenges to the ETS is completed.

Although the ETS is not yet dead, the Supreme Court’s action makes it unlikely that the regulation will ever come into effect. President Biden issued a statement following the Supreme Court ruling in which he appeared resigned to that fact, commenting that “it is now up to States and individual employers to determine whether to make their workplace as safe as possible for employees. . . .”

Notably, the Supreme Court also released an opinion in which it lifted a stay on the Healthcare ETS, allowing for the Secretary of Health and Human Resources to require healthcare facilities to vaccinate their employees in order to remain eligible for Medicare and Medicaid dollars.

For questions about this alert, please contact the authors and the Steptoe & Johnson Labor & Employment Team.