13 January 2022

Supreme Court Halts OSHA Vaccine-or-Test ETS

Today the U.S. Supreme Court halted the OSHA vaccine-or-test Emergency Temporary Standard (ETS), reinstating the stay of the ETS by a 6-3 majority.  The majority held that the ETS was more properly characterized as a broad public health measure than a workplace safety standard, and that it was therefore outside the authority that had been granted to OSHA by Congress.

As the majority opinion stated, “[p]ermitting 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.”

Employers that were covered by the ETS because they employ at least 100 employees may now stop compliance efforts with the ETS while the litigation proceeds in the Sixth Circuit.

The CMS vaccine mandate that applies to certain health care workers was upheld by the Supreme Court in a separate opinion also issued today.  Employers covered by the CMS rule should immediately start compliance efforts, if they have not done so already.

A separate federal contractor vaccine mandate remains enjoined nationwide, and is subject to ongoing litigation.

We will be sure to update you on any relevant developments.  If you have any questions, please contact your Miller Johnson attorney or one of the authors.