Supreme Court stays OSHA ETS but upholds CMS vaccine mandate

On January 13, 2022, six days after oral argument was heard on the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) vaccine-or-test rule and the Centers for Medicare and Medicaid Services’ (CMS) shot mandate for healthcare employees at facilities receiving Medicare or Medicaid payments, the U.S. Supreme Court stayed OSHA’s enforcement of the ETS but refused to block the CMS rule. Let’s take a closer look at how the decisions will affect employers.

OSHA ETS

The Supreme Court found OSHA’s ETS, requiring all employers with at least 100 employees to implement COVID-19 vaccination or testing policies, was unenforceable and exceeded the federal agency’s authority. The Court voted 6-3 to stay the standard’s enforcement while substantive legal challenges proceed in the lower court, stating, “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given the agency the power to regulate public health more broadly.”

The ETS had previously been stayed by the U.S. 5th Circuit Court of Appeals (which covers Mississippi, Louisiana, and Texas). More recently, however, the 6th Circuit lifted the stay and reinstated the rule. A petition to the Supreme Court swiftly followed.