On January 13, 2022, the U.S. Supreme Court temporarily blocked the Biden Administration’s vaccine-or-test mandate from going into effect pending the outcome of litigation on the matter. This reverses a December 2021 ruling from the Court of Appeals for the Sixth Circuit that allowed the policy to move forward.
Last year, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) that would have compelled employers with 100 or more employees to require COVID-19 vaccinations or weekly testing with mask requirements for their workers. The policy faced immediate pushback from numerous States and business groups and spurred several lawsuits nationwide. In its’ decision, the Supreme Court said “[a]lthough Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”
Despite the ruling, the Administration has urged private employers and States to institute the ETS requirements on their own. It is also possible that the Administration could ultimately prevail in ongoing litigation efforts, reinstating the ETS requirements. Given these uncertainties, employers should be mindful of the ETS’ underlying requirements and understand the possibility that these or similar measures could be imposed by state and local jurisdictions.
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