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The Supreme Court of the United States Blocks OSHA’S ETS Regarding Vaccines but Enforces CMS Mandate

By: Jade L. Robinson, Esq.

jrobinson@bugbeelawyers.com

The Supreme Court of the United States rendered a 6-3 opinion enforcing the stay, in other words blocking, OSHA’s Emergency Temporary Standard (ETS) requiring employers of 100 or more employees to enforce a vaccine or test requirement in its entirety.

The Court focused on OSHA’s authority to issue such a mandate.  The Court found that the Occupational Health and Safety Act did not plainly authorize the mandate. OSHA is permitted to set occupational standards but COVID-19 is not an occupational issue; it is a public health issue.  The Court found the mandate takes on a general public health measure, rather than an occupational safety or health standard. The majority stated “COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that we all face from crime, air pollution, or any number of communicable disease.” The Court distinguishes between professions, such as the healthcare profession, where the virus poses a special danger because of the nature of the employee’s workplace.

This reasoning is in line with the Supreme Court’s separate decision to enforce the Centers for Medicare and Medicaid Services vaccine mandate. In this decision, the Court found that the Secretary of Human Health Services has the statutory authority to require employees of entities that receive Medicaid and Medicare funding to be vaccinated.

What does this mean for employers with 100+ employees?

OSHA’s ETS is currently not in effect and will likely not go into effect pending the end of the litigation in the United States Court of Appeals for the Sixth Circuit.  Currently, employers do not have to comply with the OSHA ETS and are free to revoke their OSHA ETS compliant policies that they have previously implemented.

Bugbee and Conkle will continue to keep our clients updated regarding the fate of the OSHA ETS mandate with the Sixth Circuit. If you have you any questions, please contact us.

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