January 14, 2022

How We Got Here

The Biden Administration’s broad vaccine-or-test mandate applicable to employers with 100 or more employees was detailed in the an “Emergency Temporary Standard” (ETS) released by the Occupational Health and Safety Administration (OSHA) in November 2021. The ETS was immediately subject to several legal challenges and a “stay” from the U.S. Court of Appeals for the 5th Circuit. Ultimately, those proceedings were consolidated and transferred to the 6th Circuit Court of Appeals and the stay was lifted.

The lifting of the stay in the 6th Circuit resurrected the OSHA ETS requirements and OSHA started enforcing the first phase of requirements on January 10, 2022. The second phase of requirements regarding testing were due to be enforced starting on February 9, 2022.

Action at the U.S. Supreme Court

Those challenging the ETS filed an appeal to the U.S. Supreme Court, and arguments were heard on Friday, January 7, 2022. The Supreme Court’s decision on Thursday, January 13, 2022 provides certainty for employers that the OSHA ETS is not going to apply unless and until the courts ultimately decide that OSHA did not exceed its authority in issuing the ETS. Notably, in its order, the court telegraphs what may be the ultimate outcome – stating that the challengers “are likely to prevail” in overcoming the OSHA ETS, which would mean that the rule in its current form would never take effect.

Other Vaccine and/or Testing Requirements May Still Apply

While the OSHA ETS is set aside, employers subject to the HHS’s vaccine mandate for workers at federally funded health care facilities will need to comply with those requirements while challenges proceed in those court cases. Also, in the event any state or local requirements apply to an employer’s workforce, the Supreme Court’s decision does not undercut those obligations. In fact state or local requirements that would have conflicted and been preempted (overruled) by the OSHA ETS will now continue as applicable in light of the court’s order.

Additionally, employers may continue to voluntarily adopt vaccine-only or vaccine-or-test, and masking requirements, as otherwise permitted under federal, state, and local laws.

We will continue to monitor the OSHA ETS and related matters and provide additional updates in the future. For any questions, please contact Garrett Hohimer, Director, Policy & Advocacy at [email protected] (note that with the holidays imminent response times may be delayed).

We provide this material for informational purposes only; it is not a substitute for legal advice.

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