Supreme Court Blocks OSHA’s Vaccine-or-Test Mandate for Large Companies

A man wearing a mask and gloves holding a vial of the Pfizer-BioNTech COVID-19 vaccine
Published On
Jan 14, 2022

On Thursday, Jan. 13, 2022, the Supreme Court blocked enforcement of the Occupational Safety and Health Administration’s emergency temporary standard (ETS) that mandates a vaccine-or-test requirement for large companies.

The court heard arguments regarding the constitutionality of the ETS on Friday, Jan. 7, 2022, along with arguments regarding a separate vaccine mandate for healthcare workers at medical facilities that accept Medicare or Medicaid. The latter standard was allowed to stand.

The decision came only days after the standard went into effect on Monday, Jan. 10.

According to a NECA legal alert from Conn Maciel Carey LLP, at this time it appears businesses have “no regulatory obligations to meet pursuant to the ETS.”

However, according to the alert, the Occupational Safety and Health Act’s General Duty Clause does remain in effect, so employers must continue to evaluate whether they are making reasonable efforts to protect their employees from pandemic-related hazards, using the various CDC and OSHA guidance for COVID-19 workplace protocols.

“NECA and its members support efforts to mitigate this pandemic, but agree with the decision to not add additional burdens to large employers and encourage everyone to get vaccinated and follow CDC guidelines to keep their fellow employees safe,” said Wesley Wheeler, NECA’s director of safety.

The ETS was announced on Nov. 4, 2021, and was immediately challenged in court. The Fifth Circuit Court of Appeals placed a stay on the order the day after it was issued. The issue was then consolidated to the Sixth Circuit Court of Appeals, which lifted the stay on Dec. 17, 2021.

Had it been allowed to proceed, companies with 100 or more employees would have been required to either develop, implement and enforce a mandatory COVID-19 vaccination policy, or adopt a policy requiring employees to either be fully vaccinated or undergo regular COVID-19 testing and wear a face covering at work. Employers would also have been required to provide workers with paid time to get vaccinated and to recover from any side effects.

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