The United States Supreme Court has blocked the Occupational Safety and Health Administration (“OSHA”) from enforcing the emergency temporary standard (“ETS”) which required businesses with at least 100 employees to ensure workers are vaccinated against the coronavirus or wear masks and undergo weekly COVID-19 testing. The parties will now go back to the lower courts to determine whether the ETS is valid.
As we previously reported, as a result of multiple lawsuits brought when the ETS was issued, the majority of the ETS’s provisions took effect on January 10, 2022, while the date for compliance with the weekly testing requirement was scheduled to take effect in February. Most recently, the ETS’ challengers applied to the United States Supreme Court for an order barring the ETS from taking effect while the lower courts consider whether OSHA exceeded its authority in issuing the rule. On January 7, 2022, the Supreme Court heard arguments on the issue.
The Supreme Court ruled that employers with one hundred or more employees are no longer required to comply with the ETS vaccination or testing requirements while litigation ensues in the lower courts. It is important to note that this does not change anything for companies that are subject to state or local mandatory vaccination requirements. In addition, the decision does allow the federal government to require COVID-19 vaccination for health care workers at Medicare and Medicaid certified providers and suppliers.
Employers that have taken steps to comply with the ETS vaccination or testing requirements can still choose to require vaccination or testing of their employees, as long as they properly entertain requests for reasonable accommodations for medical or religious reasons.
We will continue to monitor developments on the status of the ETS and other mandates. If you have any questions about the ETS or mandatory vaccination policies, please contact ALG.